Stetson law professor predicts legal quagmire surrounding evidence in court.
By Johannes Werner
Original Air Date: July 3, 2024
Host: Still trying to wrap your mind around the U.S. Supreme Court’s Monday ruling? A professor at Stetson University College of Law in St. Petersburg called it “earth shattering”. We’re going to give you excerpts of an interview Ciara Torres-Spelliscy had with Sean Kinane, news director of partner station WMNF.
Johannes Werner: The Republican establishment loved the Supreme Court ruling on presidential immunity. Florida Attorney General Ashley Moody was among 18 attorney generals from Republican states who signed a “friend of the court” brief in March in support of Donald Trump and presidential immunity. She wrote on social media she was pleased with the decision to what she called the danger of intrusion on the presidency. And Congressman Daniel Webster from Leesburg called it a pushback against “leftist prosecutors and the weaponization of the Department of Justice against President Trump.”
But Ciara Torres-Spelliscy, a constitutional law expert at Stetson University College of Law in St. Petersburg and author of a book titled “Corpotocracy”, called the effects of the ruling on U.S. government “really, really bad”.
Ciara Torres-Spelliscy. Photo: Chris Young/WMNF
Ciara Torres-Spelliscy: I have been writing about Trump’s ongoing criminal liability in my new book, Corpotocracy. And I think all of the fears that I laid out in that book sort of came to pass with this presidential immunity decision from the Supreme Court. The court gives a new and broad immunity to core presidential powers. They didn’t go as far as Trump wanted. So Trump wanted the entire case thrown out, and they didn’t do that. But they helped him enormously. Number one, they helped him with the timing of all of this. Jack Smith had originally asked to expedite this case. He knew that this would end up in front of the Supreme Court and he sort of pleaded with them, “Can you please give me an expedited hearing on this?” And the court refused. They said, “Go back to the lower courts, litigate it there. And then if it comes to us, it comes to us.” So he does that. He wins with Judge Chutkin. He wins in the D.C. Circuit. Who both come to the, I think, perfectly logical conclusion that ex-presidents are not categorically immune. It goes to the Supreme Court. The Supreme Court hears it on the last day of hearings for this Supreme Court term, then they sit on the decision until the last day for decisions to be issued in the Supreme Court term. And we finally got that decision yesterday. It is earth-shattering in terms of the powers that it gives all presidents, including President Biden.
JW: She first laid out what the justices argued.
CTS: What the court does here is it sets up three new categories. So with core presidential powers, that gets absolute immunity. And I think what the court means by this is those powers that are specifically enumerated in Article II of the U.S. Constitution, that the president is the commander in chief, that he has the pardon power, that he gets to appoint ambassadors and judges. Those are all explicit powers that the constitution gives to every president, then there are implied powers that are more … the court talks about a sort of a twilight zone.
This comes from an older case called Youngstown Steel, where in that case, it was President Truman. He seizes the steel mills in the middle of the Korean War. He thinks he has a good reason for doing this, where we have a need for steel in order to arm our troops. But the Supreme Court brushed back Truman in that decision, and they talked about where presidential power is at. It’s the highest ebb and lowest ebb. And so the court reincorporates the Truman model somewhat into this opinion, and decides that those types of peripheral presidential powers are going to get presumptions of immunity, but those presumptions could be rebutted in a particular case. And the court in particular says that what happened between Trump and Vice President Pence might be in that sort of twilight zone where you could sort of pierce the immunity. And then finally, the court has this third new category, which is for unofficial acts. And unofficial acts get zero immunity from prosecution, and that may be outcome determinative for President Trump’s future prosecution,
JW: Then, she laid out how this ruling will likely play out in the cases against Trump over election interference. The Supreme Court threw the case back to a lower court, and that judge will have to weigh the arguments of both sides whether Trump acted officially or privately.
CTS: Jack Smith, the special prosecutor, is going to argue that everything that he’s charged is a private act and Trump’s attorneys are going to counter that none of it is a private act, that it was all under his official capacity as president, and it’ll be up to the trial judge to figure that out.
I mean, on the upside, the court clarifies that campaigning for a president is an unofficial act. That’s a private act. And much of the behavior around the 2020 election and trying to overthrow it was really Trump acting as a candidate, not as a president. And one of the reasons we know that is the running of presidential elections. So administering a presidential election is given constitutionally to the states and to Congress and then for like five seconds to the vice president. So it’s the states that run presidential elections. Then when that is done, it is Congress that counts those electoral college votes. And the vice president on January 6th is the one who essentially opens the envelopes and helps with the count in Congress in his capacity as the president of the Senate. But the president, you might notice in that list, This is nowhere to be found. The president is merely a candidate and that is in his private capacity.
So I sort of fully expect that the way that this will eventually play out is that Judge Chutkan will decide that this was all campaigning and as such, it is not an official act and is not immunized. So while I think Trump has already done a little victory lap about this decision, it may actually not save him.
JW: The Supreme Court ruling strictly bans evidence from official acts. But that is highly problematic, according to Torres-Spelliscy.
CTS: It is going to be very, very strange to try to explain to a jury what a particular president is accused of even doing if you have to redact out some of what he does in his official capacity. Because in some instances, it’s going to be incredibly intertwined, and it may make the narrative seem to make no sense. But here you’re not allowed to take in questions of motive, if in order to do so you have to expose an investigation into core presidential duties.
I mean, this is all like a mouthful and this is going to be a lawyer’s delight. This is going to cause lots and lots of filings in the Trump cases. And I’d imagine if we have a future president who is really close or beyond the criminal line, they’re going to hug this opinion and put it under their pillow so they can sleep better at night. It is really, really bad.
The full interview with WMNF News Director Sean Kinane aired this week on WMNF’s Tuesday Café. Go to https://www.wmnf.org/law-professor-calls-mondays-scotus-ruling-presidential-immunity-earth-shattering/
WSLR News aims to keep the local community informed with our 1/2 hour local news show, quarterly newspaper and social media feeds. The local news broadcast airs on Wednesdays and Fridays at 6pm.