How Supreme Court Justices Responded To Trump's Immunity Case: Law Professor Explains

5 months ago

Claire Finkelstein, professor of national security law at Penn Carey law, joined Liane Jackson on "Forbes Newsroom" to discuss the Supreme Court Case regarding former President Trump's immunity.

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Transcript

00:00 Can you talk a little bit about which justices were really

00:03 trying to thread the needle between what is official capacity and personal capacity?

00:07 And what do you think they were getting at with that in terms of the actions on January 6?

00:12 - So what really concerned me was that both the liberal and the conservative justices

00:18 seem to buy into this distinction between official capacity and personal capacity acts.

00:25 There is some basis for that distinction, but it's really much more in the civil realm.

00:30 So it is clear that government officials have a certain degree of immunity when it comes to civil

00:40 liability for official capacity acts. But in my view, that really doesn't carry over to criminal

00:49 liability. And when here we're talking about criminal liability, so they spent a lot of time

00:55 trying to figure out what things are criminal and what things are civil, and seemed almost at times

01:03 to accept that there could be immunity for official capacity acts, but just laid stress on the idea

01:13 that a lot of the acts involved in the January 6th context might not be official capacity,

01:21 might be personal capacity. Now, however important that distinction might be in the civil arena,

01:28 I don't think it's an important distinction in the criminal arena, because there can't be any

01:36 immunity for official capacity crimes. There is no such thing as an official capacity crime.

01:44 >> Crime is crime. >> Crime is crime. So the president

01:49 doesn't get a pass for committing crimes and saying, I did it as president. It's different

01:56 in the civil arena. And so what the court should be saying is this distinction doesn't matter.

02:04 The president doesn't get to violate the law, period. He doesn't get to contravene

02:12 federal criminal statutes, like the obstruction statute, or murder, which might be involved in the

02:22 SEAL Team 6 example. And so it really doesn't matter. And it doesn't have to go on remand

02:30 down to the district court, because Tanya Chetkin doesn't have to figure out what's

02:36 official capacity and what's personal capacity here. All she has to do, and this can already

02:43 be done at this stage, is say there is no immunity for any criminal acts committed by

02:51 any president. And now the trial can begin, and a jury can figure out whether or not former

02:58 President Trump has committed criminal acts. It's very straightforward. It's very simple.

03:04 And this is really a red herring to try to figure out what acts are personal and what official.

How Supreme Court Justices Responded To Trump's Immunity Case: Law Professor Explains

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