The Cross Examiner/Graham: Welcome, welcome. Welcome to the Cross examiner podcast. I am your host, the cross examiner. I am an atheist. I am an attorney, and I am alarmed. I am alarmed by the rise of christian nationalism in the United States, but more importantly, about the massive amount of misinformation that is powering that rise. Today is a rocket docket episode. I, These are my episodes. I want to get out quickly to react to current developments. And today, we had quite a development. The United States Supreme Court just issued its opinion in Trump v. Us, and we need to talk about it. I’ve read the opinion. I haven’t read all the opinion. I got. I got to be honest, I’ve read the sotomayor’s dissent, the main paragraphs and points of the majority opinion, and, Barrett’s dissent and some of Jackson’s dissent. I should characterize Barrett’s as not a dissent. She’s dissenting from parts of the opinion, not all. And that’s an interesting development. Barrett is really turning out to really be expressing her independence from the rest of the court in a very interesting way. But let’s get to the meat of this case, because I think it’s very important. I don’t know what the headline of this episode is right now, but it could very well be something along the lines of, the Supreme Court says, it’s probably, let’s rephrase that. The supreme Court says Biden would probably be immune if he ordered the military to assassinate Donald Trump. And I’m not joking about that. at least three of the supreme Court justices agree with me on that, and here’s why. The case, if you may remember, this, is about Trump’s, election interference. And his attorneys are claiming that he’s immune from prosecution because he was still president, and anything he does as president, he should be immune from. And he was asked in court if he were president and he ordered SEAL team six to assassinate a political rival because he thought that that rival was a threat to America, would he be immune? And his own attorney said, eventually, yeah, he probably would be. That’s why we take our elections seriously. So if that’s shocking to you, as I hope it is, we should probably dive into this case and figure out what it means for the future, because I, think what we’ve just done is reverted back to creating presidents, as kings, rather than, the people that our founding fathers thought they would be. So what, what’s in the opinion? The nutshell is the supreme Court has created three different buckets of presidential activity. The first bucket is core constitutional powers of the president. Things that the president does that are enumerated in the constitution. He is the chief executive of the country. He issues pardons, he can veto bills, he can sign bills. he is the commander in chief of the military, things like that. He appoints judges, he appoints ambassadors. So that’s actions that the president takes that are core constitutional powers. The Supreme Court is saying any action that he takes in the execution of those powers, he is immune from criminal prosecution related to any action. So that means, for example, if he goes to appoint a judge and that judge pays him $10 million in exchange for the appointment, or Steve Bannon, who is going to prison today, pays Donald Trump, if he were in office, $10 million, $100 million to issue a pardon, Trump would be immune from criminal prosecution for that. That’s what this opinion means. Now, the dissent, Sotomayor, gets to this right off the bat. She says, why did we even address core constitutional powers, and whether or not the president is immune in the execution of those powers? Because the case at hand doesn’t have anything to do with core constitutional powers. The case we’re deciding today is a president doing politician things, trying to

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The Cross Examiner/Graham: desperately stay in office, leveraging the power of the Department of Justice to try to put pressure on states to change their reported elector, electoral votes, the president talking directly to states to influence them. None of that is in the core powers of the president. Everybody agrees on that. And it’s a longstanding principle with, the Supreme Court to avoid a. Answering questions that are not asked, because it just gets you into trouble. They use that principle of, hey, we don’t reach that question as the language. We don’t reach the question of whether or not core constitutional powers, actions taken under them can be, prosecuted criminally, because that’s not relevant to this particular case. They will do that all the time to avoid answering political questions or sensitive questions or questions that they just don’t want to touch, because why answer it if it’s never going to come up, is the philosophy, which is a. It’s a good philosophy. Keep in mind, the Constitution talks about the court addressing cases and controversies in front of them. There is no controversy in front of them about core presidential powers. So that’s one of the first criticisms that Sotomayor lays out, we didn’t have to even make this rule. Then she points out later on in her opinion that, okay, since you made that rule, does that mean, and it appears to her and the three other dissenting justices that it does mean, if I’m executing those core presidential powers, and I do so in a criminally corrupt way, I am immune from prosecution. If I, like I said, a judge bribes me to get appointed, I issue a pardon. And then one must ask, I am the commander in chief. If I ordered SEAL team six to assassinate a threat to America that I, as the president, have determined is a threat to America, is that a core constitutional power? And if so, does that make him, immune to murder charges? All three dissenting judges say, yeah, it appears that that’s what you’re saying. So that’s the first bucket. We’ve never addressed this question before, and it goes against historical precedent. You may have heard of, a small little book called I’m holding it up now, the federalist papers, for those who are watching on video, the federalist papers, what is that you may have heard that, addressed a lot of times. these were articles written by three very influential people. You may have heard of Hamilton, and, Madison and Jay, John Jay, defending the proposed constitution to the citizenry of the United States. While the constitution was being, debated, they went out and they realized, we’ve got to sell the constitution. So we need to explain what it is, because we’ve written it in a very broad way. They wisely wrote it in a broad way, so it could be more of a living document, give you specific steps to do pretty much anything other than how to run the government. They just tell you that the. The Congress can legislate and do anything they want. And then later, they add the bill of rights to say, except this. They can’t establish a government. They can’t quarter, soldiers in your house. They can’t deny you the right to a fair trial. Basically, it doesn’t explicitly say that, but that’s what we’ve interpreted to. To mean. So the Federalist papers say, okay, I know you have a lot of questions. Here’s what all of this means. And in the federalist papers, Hamilton. And I’m going to. Forgive me for pulling up my book here, but I’m going to read from my copy of the Federalist papers. This is federalist paper, 70, 60, nine. Excuse me. The real character of the executive. The executive is the president. So this is cutting in, in the middle. This is Alexander Hamilton. Quote, the president of the United States would be liable to be impeached and would afterwards be liable to prosecution and punishment in the ordinary course of law. This is. Sotamoyer quotes. this exactly. So a, when a president misbehaves, you can impeach him to get him out of office. And then once he’s out of office, he’d be liable for prosecution for any crimes he committed. This is a founding father, a group of founding fathers, all writing together to say, this is what the Constitution intends. He goes on to say, the person of the great king of Britain is sacred and inviolable. There is no constitutional tribunal to which he is amenable, no punishment to which he can be subjected without involving the crisis of a

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The Cross Examiner/Graham: national revolution. He’s talking about the king here. The king. There’s no law. He answers to, this is why we are leaving Great Britain. The king is not accountable to anybody. He can’t be prosecuted criminally. If the king says murder somebody, then by rule, that’s okay, because the king said it. And Alexander goes on, Alexander Hamilton, quote, in this delicate and important circumstance of personal responsibility, the president of Confederacy Federated America. The United States would stand upon no better ground than a governor of New York and upon worse ground than the governors of Maryland and Delaware. So he’s saying, hey, the king right now is like what the Supreme Court is doing. The king is not answerable when he’s doing his kingly duties to any criminal trial here. Alexander saying, under our constitution, the president would be like a governor, in fact, worse than the governor of, new, York. Right. So in retrospect, when we go back and we look at what the founding fathers say, this is the core principle of our democracy. The entire purpose of the revolutionary war was to get away from kings. And what Sotomayor is pointing out is you just moved us back towards kings without any, any backing by historical precedent at all. In fact, she points out, and the majority is very clear on this, they take up this argument that conservatives, conservatives have long held, because let’s be clear about who conservatives are. Conservatives are, if anything, bootlickers of the king. At the very beginning, the conservative movement of this country was arguing that we shouldn’t have a president, we should have a king. The conservatives want a strong executive. We want to give all this power to one person so they can do whatever they want, and they trust that that person will do what’s in the best interest of the country, or at least what that person thinks is in the best interest of the country. And I don’t think they really contemplated the idea that we would have somebody like Donald Trump, who is absolutely the worst type of person to be president of the United States. He cares nothing for the people who elected him, even less for the people who didn’t vote for him. And all he cares about is his own advancement. They may have intellectually contemplated that, but they’ve put so much emphasis on they won’t be kings, that I think that that wasn’t a concern to them. So instead, the executive is viewed today by conservatives as it should be stronger. Like, we have a very strong executive, but executives want it to be stronger. And the excuse they give is, we want the executive to be bold and decisive. That’s the language that they use in the opinion. In other words, if the president has to second guess every decision he makes by thinking, could I be held liable criminally when I leave office for what I’m about to do? They say that that’s a bad thing. That’s literally their argument, that we want an unrestrained, bold, decisive, almost reflexive, reactionary executive, rather than one who sits, as they have been up until this very moment, sits and says, hm, I wonder if what I’m about to do, I could be criminally liable for. That’s the argument that Trump’s old lawyers make, is, hey, he wouldn’t have done it if he thought it was criminally liable, because we all know that you can be criminally liable. We wouldn’t have had Watergate under this opinion. Under this opinion, what Nixon did in Watergate would not be going to trial now, not for the reasons that I’ve stated so far, because breaking, authorizing the break into a political campaign headquarters is not a, core constitutional power. So we’ll get to that later. But even. Even under the second bucket, which we’ll discuss, he would not be immediately, at least criminally liable for what’s going on. In other words, Nixon’s ghost is rolling and laughing and pointing at us in his grave. You may remember, Nixon famously went on air in an interview and said, if the president does it, that means it’s legal. That’s how much of a king he wanted to be. It’s the same. It’s the same as. As the king. I, think it was King Louis XVI, maybe. I forget which Louis it was. There were so many Louis. I am the state. The state. C’est moi. I am the state. I am the government. The government is me. If I say

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The Cross Examiner/Graham: something should happen, then by definition, that is the law, that’s what the supreme Court is giving us. And so, and so to mayor and, that her fellow dissenters point this out time and again. The executive, the, excuse me, the majority is mischaracterizing history here. We don’t have a history of the founding fathers saying we want a quick, bold, decisive, reactionary president who is not even concerned about criminal prosecution. We have in the very federalist papers, by the way, there’s a whole society called the Federalist Society. You may have heard of it. It’s because conservatives love the federalist papers, because they want to get back to just those core principles that were in that document. They refuse to acknowledge that they wrote the constitution in a broad, so it could be a living document. They, they argue, just read the federalist papers. That’s all we should do. So. Okay, let’s do that. Conservative majority, strict constructionists, historically based people who have created a history and tradition. Test now for establishment claw case law cases and other cases. Gun law. We’re using history and tradition and gun law. Now, why are we not using history and tradition in this case? And I’ll tell you why. Because this opinion is structured in a way to give Trump an out. This is the Supreme Court. Opinions are supposed to be decisions for the ages. This is a decision of the moment. I was, I was hopeful, I don’t think I counted on it, but I was hopeful that they might get a majority opinion in this case. And I, they probably, probably were close until they decided this, carve out of these three buckets, and tried to give Trump an out. If they had said, core constitutional powers are, immune from criminal prosecution, the actions you take under those are immune, and then everything else is subject to prosecution. I think the minority could have agreed, at least on the conclusion. If nothing, they might have objected and dissented and said, I don’t think we should have even reached the question about core powers, because it’s not in the case that’s before us. But they at least would have probably agreed. But they didn’t. They carved out this middle bucket to give an exemption to Trump. That’s probably going to get him back into the White House, if not keep him immune from prosecution altogether. So let’s talk about the other two buckets. On the first bucket is actions taken that are core to your constitutional powers. We can go to the third bucket. The third bucket is purely private matters. Trump is at the gas station. Fill up. Filling up, his gas truck with gas. As if he would ever drive himself or drive a truck fans of him. I mean, I hope you realize how ridiculous that is. Right. and he steals the gas or he punches a guy or he shoots somebody on Fifth Avenue. Like, he loves to fantasize about purely personal matters. Absolutely. Subject to criminal prosecution once he leaves office. Right. That’s. That’s a no brainer. Everybody agrees on that. So what’s this middle bucket? The middle bucket is official. Other official actions. So we have official actions taken under the core powers that are granted to him by the constitution, appointing people, vetoing bills, being the commander in chief of the military, negotiating, with other countries, either himself or via, ambassadors. That, again, he appoints. Those are. Those are the core ones. Anything else that he does as president can be an official action. He’s doing it as part of being in the office, but it’s not a core power. And they carve out this middle status and say, well, you might be criminally liable later on, be able to be prosecuted, I should say. But, there’s going to be a presumption that you can’t. We’re going to presume that you’re immune, but we’re going to allow hearings where the state, the prosecutor, can come in and present evidence to prove that you should not be immune for this act. So, in other words, we’re just going to take it on a case by case basis. And as far as I can do, and I haven’t read the guts of their opinion, sotomayor does not mention it. But I haven’t seen yet any guidance as to what people will use, lower courts will use to figure out whether or not a president should be immune for something. So, for example, let’s take, I am directing the Department of Justice to create a sham investigation and do press releases to say that they suspect that the 2020 election was fraudulent. Okay. That’s not a core constitutional power. Right. It’s not a personal

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The Cross Examiner/Graham: thing. He’s not stealing money from the. The gas and sip. It is an official act. He’s talking to the department, of justice. So you might think, okay, well, that’s an official act. We can go to court and say he should be, he should be held liable, because, look, in his communication to the Department of Justice, he told them, we know this is all made up, but I want you to go out there and lie to the public. Well, you’re wrong, because the Supreme Court said today that any official communication, as part of his official duties, cannot be introduced into evidence to try to prove that he should be held liable. How? I hope your jaws on the floor, because mine is as well. I do not know how I’m supposed to prove that an official act should be liable to criminal prosecution if I’m not allowed to introduce evidence of communications and things like that that were done within that official act. I can just, I can just bring into court the result. So let’s take the bribery of, to appoint a minor official. Let’s say that’s not a core, it’s a minor official or it’s a bribery for something that’s not in the core constitutional powers. Right. And I have communication saying, hey, if you pay me a million dollars, I’ll make you a federal judge or I’ll make you ambassador to Barbados. How you, how’d you like to spend your, your days in Barbados? And they pay him and he appoints them. None of that communication can go into the record. You go to the, you go to the courts and you say, he should be prosecuted. This was bribery. well, wait a second. Objection. How do you know it’s bribery? You have no evidence of that. You can’t, you can’t introduce evidence of bribery. Well, I can introduce evidence that this person paid money to this person who probably then dropped it into some campaign fund or some offshore account. Maybe I can find that evidence and introduce that to say, we’ve traced the money back to this judge and it was paid to the president and he asked for that money. Right? No, I don’t have any evidence of that because I’m not allowed to introduce that evidence. I could just say this guy paid money to that judge. Excuse me, this judge paid money to the president through a series of things. Maybe I can’t even prove it right. People get very good at laundering money, so you can’t figure out where it went from. But let’s just assume you could. Is that a crime or is that maybe a campaign finance donation? If they say, well, that was just a gift, look at Clarence Thomas, look at how much money he’s getting. And so these were just gifts. These were just, there was no expectation on the other end. And I won’t, as an attorney, I could not rebut that. I have the evidence. I’m not allowed to tell the judge about it, right. I’m not allowed to introduce it. And the judge, if they heard it, would not be allowed to consider it. All I have is money going one way, an appointment going the other. But no smoking gun. And this is criminal court. Keep in mind, you need a smoking gun beyond a reasonable doubt as long as there’s just money going one way and a point going the other. We’re going to get. We’re going to get opinions for the president. So you have de facto immunity for the middle bucket, official actions that aren’t necessarily core constitutional powers. and I’m going to read, a couple of comments out of Sotomayor’s opinion that I think we should listen to. Here’s what she said. Today’s decision to grant former presidents criminal immunity reshapes the institution of the presidency. It makes a mockery of the principle foundational to our constitution and system of government, that no man is above the law, relying on little more than its own misguided wisdom about the need for a bold and unhesitating action by the president. The court gives former President Trump all the immunity he asked for and more, because our constitution does not shield a former president from answering for criminal, treasonous acts. I dissent. And let me tell you those last two words. I dissent. That’s a sick burn in Supreme Court world. The vast majority of the time, you will see justices say, I respectfully dissent. But for us court watchers, I dissent. That’s a slap in the face. That’s a glove across the face to the rest of the court. She does not respectfully dissent. She does not respect the opinion of this majority. She just dissents because they are putting, our freedom at risk. so this is what she said earlier, just to give support to my analysis. Right? And again, these are my rocket docket episodes. This is not scripted. I apologize if it’s a bit disjointed, but you need to know what’s going on here, because you’re going to hear a lot from President Trump claiming victory here. And to some degree, he’s right.

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The Cross Examiner/Graham: In another degree, he might be wrong. So she says. The court now confronts a question it has never had to answer in the nation’s history. Whether a former president enjoys immunity from federal criminal prosecution. The majority thinks he should. And so it invents an atextual, ahistorical, and unjustifiable immunity that puts the president above the law. The majority makes three moves that, in effect, completely insulate presidents from criminal liability. First, the majority creates absolute immunity for the president’s exercise of, quote, core constitutional powers. This holding is unnecessary on the facts of the indictment, and the majority’s attempt to apply it to the facts expands the concept of core powers beyond any recognizable bounds. In any event, it is quickly eclipsed by the second move, which is to create an expansive immunity for, quote, all official acts whether described as presumptive or absolute, under the majority’s rule, a president’s use of any official power for any purpose, even the most corrupt, is immune from cross prosecution. Again, reading that, whether you describe that immunity as presumptive or absolutely, it makes a president’s use of any official power for any purpose, even the most corrupt, immune from prosecution. Then she goes on, that is just as bad as it sounds, and it is baseless. Then she says, finally, finally, the majority declares that evidence concerning acts for which the president is immune can play no role in any criminal prosecution against him. That holding which will prevent the government from using a president’s official acts to prove knowledge or intent in prosecuting private offenses is nonsensical. So these are the things that, Sotomayor and the rest of the, minority are pointing out, and I can’t agree with them more. This is undoubtedly new territory for the court. We’ve never had to deal with a person like Donald Trump, and the court here is showing its ass. They could have said, core constitutional powers immune. I don’t think they would have gotten any objection other than the. The minority saying, we don’t think it’s appropriate to even reach to answer that question because it’s not raised under this indictment. That would be like if I sued target for false advertising. And then I got to the supreme Court and they said, the rule for determining whether, target is allowed to advertise, using federal dollars, is x. It has nothing to do with the lawsuit, but they know that. They want to come in here and say, this is the time, this is the opportunity for us to put our stamp and create a king, a mini king, because that’s what we conservatives love, not thinking about the opposite. Right? That’s why I think maybe the headline of this episode should be, Supreme Court thinks that Joe Biden should be able to assassinate Trump and be immune from prosecution. They never think that this is going to be used against them. Right. do you want a king as a president, or do you want somebody who is, careful, thoughtful, has a team of people who is advising him on the best course of action? The rest of our government is structured in a way for hesitancy. The legislative branch is example of log jam on purpose. We don’t want spur of the moment bills being passed. Do we want that in our president? that’s a. It’s a good question. Do we want him when he’s going to war? No. If we’re in war, we need somebody to issue orders, make their best decision hopefully have a bunch of really smart people around them and make the best calls for the information that they have on hand. But that’s a core constitutional power. Do we want them to be immune? Do we want them to be second guessing as to whether or not he should instruct the DOJ to bully the states using false information into getting him reelected? You’re damn right we do. I want somebody to be second guessing that. I want them to think, I could go to jail for this. There’s no urgency here. None of that applies. And yet this court has, pretending like they’re, they need to answer all of these questions. So they create these three buckets, core powers, private business, and everything in the middle, and everything in the middle is presumed to be immune unless you, the state, go to court and prove that he shouldn’t be immune. And by the way, I don’t think they say what, like I said, I don’t think they tell what elements you should use to decide whether he’s immune or not.

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The Cross Examiner/Graham: And when you go to court, you can’t bring up any of his official acts. I’m baffled. There’s going to be a lot more coming out. I appreciate you listening to this. I had to get this out on the air. This, court has just, I mean, I’m right now thinking we need a constitutional convention. We need to update our constitution in many, many ways. We need to clarify things like the second amendment, the first amendment, this opinion, and many other opinions. we should have a constitutional convention where we update the constitution. This is the analogy I use. Our constitution is our country’s operating system. It’s like windows, right, or iOS, right? It’s been around for two, hundred and 50 years, approximately, a little under, right. It’s old. We’ve discovered a lot of bugs in it. It’s time to patch our os. It’s time to issue Constitution 2.0 with all the best upgrades of what we’ve learned over the last 250 years. And we’ve done this. There are 20, I think, six amendments to the United States Constitution, 27, something like that. We have amended the constitution multiple times in the past after the Bill of Rights, the Bill of Rights was, ratified in 1791. That was the first patch, because people were concerned about the powers we granted to this big federal government. And we said, well, okay, they can do everything except these broad ten categories of things they have to. You got freedom of speech, you got freedom of religion. You’ve got a, right to bear arms. All of these things that we were concerned about but since then, we have m had many, many constitutional amendments changing the voting age, creating, prohibition. We didn’t want people to consume alcohol, doing away with prohibition, letting women vote. All the civil war amendments where we ended slavery and applied the bill of rights to the state so they couldn’t have any excuses to say, oh, we want to keep owning humans as property and beating them and killing them at will. All of these things we have reacted to, well, we need to react to this, at least this and possibly more things that this court will do. We need to stop being afraid to amend the constitution. Other countries do it all the time. States do it all the time. We need to do it soon to fix this problem for sure. So that’s, I guess, my conclusion after a quick read of sotomayor’s dissent and some of the majority’s categorical arguments. More to come out, I’m sure, later on. But I, that’s the nature of these rocket docket episodes. I hope you found this useful and a useful explainer. if you do like what I do, I do not monetize this stuff. I don’t make any money off of this. I lose money off of this because it’s my passion, it’s my hobby, it’s my activism. The way you can help out is by subscribing to the podcast, listening, commenting on episodes, subscribe on YouTube, and sharing it on your friend with your friends. This is hopefully would be a great explainer for anybody who doesn’t know what was really going on with this opinion today. So with that said, I appreciate you listening, and I’ll see you next time. Bye bye.

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