STEVE INSKEEP, HOST:
Let's try to understand the extent of a Supreme Court ruling that presidents are immune from prosecution for many acts, even after they leave office. The court ruled Monday that former President Trump was absolutely immune from prosecution for his talks with the Justice Department in an effort to overturn his 2020 election defeat. A court will decide if he can be prosecuted for other acts, and the new rules apply to future presidents. So this is a big deal. We're going to talk about this with Kim Wehle, a constitutional law expert and regular guest here. Kim, welcome back.
KIM WEHLE: Great to be here, Steve.
INSKEEP: Does this expand the power of the presidency?
WEHLE: I think it does. It basically says that crimes committed in the Oval Office cannot be prosecuted so long as the president uses official powers to commit those crimes. That's an expansion of the understanding of presidential power before Monday.
INSKEEP: Now, the court has said, oh, no, the president is not above the law. He can still be prosecuted for his private acts. Do you buy that?
WEHLE: I don't, because it's not the private acts that I think the public would be concerned about and the concern for democracy rests upon. It's the use of official power that is the concern.
INSKEEP: OK, let's try to work through some of the objections and analysis that has been offered about this. We have already heard from lawyers for former President Trump. They have said that a New York state court should dismiss his conviction for his activities before he was president because his recent trial in New York included some evidence of things that he had said while president, and things that you say while president amount to official acts. Let's listen to Will Scharf, one of Trump's lawyers, on CNN.
(SOUNDBITE OF ARCHIVED RECORDING)
WILL SCHARF: President Trump's Twitter account has been held by numerous courts to be - during his time as president, to be an official communications instrumentality of the White House. So those sorts of things would be official acts under the Supreme Court's ruling today. And therefore, they were not admissible as evidence in that New York trial.
INSKEEP: OK. You covered that trial, Kim. How big a deal were President Trump's tweets, which the Supreme Court seems now to have defined as official acts?
WEHLE: Well, most of the activity that gave rise to that conviction on those 34 counts were before he was president, but there was evidence. He - Hope Hicks testified he signed some of the checks to Michael Cohen out of the Oval Office, and the court does indicate that public communications get a presumption of immunity. So I do think there's some grounds for challenging the conviction. It's not automatic, though, that it would be prejudicial error that would require reversal.
INSKEEP: And just so I understand, is a president immune from prosecution even in state courts in this instance because he was acting officially as president?
WEHLE: This ruling applies to states as well as federal courts because it's under Article II of the Constitution, which binds both state and federal courts. So yes, it would bind state prosecutions as well.
INSKEEP: OK, we got a question posed by a retired general, Mark Hertling, writing on X, formerly Twitter. And he essentially raised what he said was a rhetorical question. Military officers are not supposed to follow an illegal order. They can refuse an illegal order. But if the president is immune from all future prosecution for a, quote, "official act," can the military officer still refuse?
WEHLE: No, I think the military officer is still bound by the rule of law, and they'll have to make a decision if they abide by what the president says or if they abide by the law, and I think that's going to create some chaos and trouble. The president could pardon in advance people that are willing to commit crimes on his behalf. And the Supreme Court seems to indicate that pardons, even corrupt pardons, could be within the scope of official immunity.
INSKEEP: OK, so this is an important distinction that I want to draw here 'cause I feel like some future president may confuse this. A president can do something that is illegal. Even if he can't be prosecuted for it later, it is still an illegal act that can be prevented. Is that right?
WEHLE: Well, prevented - no. I think it's really about incentives and disincentives. I mean, the reason we have, you know, laws is so people hold back in their worst instincts. Here, there isn't a reason for presidents to necessarily hold back against their worst instincts 'cause there won't be any personal liability. So it will come down to the people around him willing to abide by, you know, his misconduct, his illegal, you know, directives. It's really a quagmire, Steve, moving forward.
INSKEEP: On Fox News, former Attorney General William Barr downplayed the importance of this ruling. Let's listen to a little bit of that.
(SOUNDBITE OF ARCHIVED RECORDING)
WILLIAM BARR: The president can direct that a case be dropped, and that's part of his constitutional authority. But, you know, he cannot accept a bribe to do that because that's receiving a bribe. He doesn't have authority to receive a bribe.
INSKEEP: OK. Could you convict a former president for taking a bribe in that circumstance?
WEHLE: The question is whether he's using his official power, not the reason for his using official power. So as long as he's using his official power in exchange for a bribe, I think there's a strong argument that that would be protected activity now under Article II of the Constitution.
INSKEEP: Meaning that the president would get away with taking that bribe, you think?
WEHLE: Right. He'd be untouchable, and there'd be no disincentive, at least personal disincentive, from taking the bribe or, you know, selling state secrets, whatever. People around him could be accountable, and there could be challenges to the government itself for having gone along with that. But he personally now is immune. He's got a big bubble of protection around him.
INSKEEP: Constitutional law expert Kim Wehle, it's always a pleasure talking with you. Thank you so much.
WEHLE: Thanks for having me, Steve.
INSKEEP: We are also following the Democratic Party's deliberations over President Biden. After his debate performance last Thursday, House Speaker Nancy Pelosi is saying Biden should show his fitness for office by doing multiple interviews, and the president has scheduled one for Friday on ABC.
By the way, Biden has not done an interview with NPR News since December 2019, although our discussions with the White House continue. For the record, former President Trump last spoke with us in 2022, and invitations to both remain open. Transcript provided by NPR, Copyright NPR.
NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.
