JEFFREY GOLDBERG: The Supreme Court made history this week, issuing a landmark ruling, one that dramatically expands the power of the presidency, and helps to protect Donald Trump from criminal prosecution.
Tonight, what the court's decision means for the 2024 presidential race, and for the future of our democracy itself, next.
Good evening and welcome to Washington Week.
It's been a tumultuous and unsettling time in the nation's capital a week after what could be one of the most important debates in American presidential history, the Supreme Court rules that Donald Trump is substantially immune to charges that he tried to overturn the last election.
Joining me tonight to discuss this, Dan Balz, the chief correspondent at The Washington Post, Joan Biskupic is the senior Supreme Court Analyst for CNN and the author of Nine Black Robes, Inside the Supreme Court's Drive to the Right and Its Historic Consequences, Jan Crawford is the chief legal correspondent for CBS News, and Charlie Savage is a correspondent for the New York Times.
Thanks all for being here.
Charlie, I'm going to start with you because you're the only person that doesn't have chief in your title.
So, you know, we want to get you in.
But before we get you in, I want you all to watch this just as a kind of a table setter.
RICHARD NIXON, FORMER U.S. PRESIDENT: Well, when the president does it, that means that it is not illegal.
UNIDENTIFIED MALE: By definition?
NIXON: Exactly, exactly.
JEFFREY GOLDBERG: So, Charlie, historic week maybe understates, maybe it doesn't, but I want to ask you what does this ruling mean for the future of presidential power, not just for Donald Trump, but for the future of presidential power?
CHARLIE SAVAGE, Washington Correspondent, The New York Times: Absolutely important question.
Obviously, most of the attention here is going to be on the consequences of this for the January 6th case, and perhaps the prospect that if Donald Trump becomes president again, he will not feel constrained by criminal law and how he wields power the second time.
But this is long after Trump is gone and other people are president and other issues we can't imagine yet are facing our country.
This decision is going to reverberate.
It has unleashed the presidency from the any kind of inhibiting deterrent of maybe I better not use my official law powers to break the law because even if I can't be prosecuted while I'm in office, someday I won't be in office.
All presidents going forward will not have that inhibiting impulse thanks to what the Supreme Court supermajority has done this week.
And you know, you opened with that famous phrase that Richard Nixon used in the David Frost interview after he had left office, been forced to resign in the Watergate scandal.
But it's actually more than that.
Because, in context, that comment from Nixon was about when the president is acting in matters of national security.
Nixon's view was, the president can do no wrong.
This case -- this ruling is not limited to the exigencies of national security situations.
It is anything.
The president is immune when he uses his official powers from prosecution, especially if it's to his core powers.
But even this ambiguous middle category that the Supreme Court left open where he's presumptively immune if it doesn't go to his core powers, but it could be overcome.
The dissent, I think, rightly points out that the situation that would meet the standard to overcome immunity, even in that ambiguous category, it will be virtually impossible to show, because Chief Justice Roberts said there would have to be no chance, not just some chance or a small chance, no chance treating official act as a crime in that circumstance could be seen as intruding on or chilling the president's exercise of executive power going forward, very hard.
JEFFREY GOLDBERG: Right.
Jan, I want to ask you a question and this is going to be the schoolhouse rock part of our show.
JEN CRAWFORD, Chief Legal Correspondent, CBS News: I'm not going to start singing.
JEFFREY GOLDBERG: No, no, no.
By the way, we'll pay you extra if you do.
I want to ask you this question.
Describe for us what the Constitution says the president is allowed to do and not do and frame it in the context of what John Roberts wrote.
JAN CRAWFORD: Well, I mean, when you're talking about the core powers, there are certain things like the pardon power, for example, that you have absolute immunity for.
And that's what the court ruled very clearly.
And then you have these other powers outside of that, whereas Charlie outlined, you're presumptively immune from prosecution, but not necessarily.
So, yes, your conversations with an attorney general, that would be considered an official act.
Your conversations with the vice president, yes, it would be considered an official act unless and I think this is why I kind of reject some of the framing of this, sorry, I don't believe it's accurate to say that Donald Trump is generally immune from prosecution for his actions around January 6 because the Supreme Court.
And I think this has really gotten lost in the this whole kind of overheated, rhetoric of what this opinion said.
I think it's important to remember that the Supreme Court rejected Trump's sweeping arguments that he was absolutely immune from prosecution for his actions around January 6th.
They rejected that.
And they said he can be prosecuted for his unofficial acts.
And much of what Trump did on January 6th, I believe, Jack Smith will be able to show was an unofficial act, not an action of an officeholder, a president, but in action of an office-seeker, a candidate.
And if you go back and look, there's a comparable case that the court in its opinion signs off on in the D.C.
Circuit called Blassingame, who sued police officer, sued Trump.
This is a civil case.
But the D.C.
Circuit in an excellent opinion by Sri Srinivasan, who was on Obama's shortlist for the Supreme Court, joined by Greg Katsas, who was Trump's Deputy White House Counsel, came together and agreed that large swaths of Trump's behavior on January 6th were unofficial acts.
The court cited that approvingly.
I think Judge Chutkan will take that analysis.
And so I believe this indictment will be narrowed potentially and certainly delayed.
But it still can proceed.
JEFFREY GOLDBERG: But, Joan, how dramatic a change is this?
JOAN BISKUPIC, Senior Supreme Court Analyst, CNN: I actually think of it as much more dramatic than Jan does, although -- JAN CRAWFORD: No, I don't -- it's a dramatic change.
It's new law, but I think that you have to remember the distinctions that the courts drew.
JEFFREY GOLDBERG: Go on.
JOAN BISKUPIC: I think that Chief Justice John Roberts really envisioned a much bolder executive than we had before Monday and he spoke a lot about the importance of the president being bold, fearless, can't be looking over his shoulder, can't fear the next successive president coming after him, and, first of all, just as a baseline, read so much into executive power.
And then secondly, though, when he did go through just not in a firm way, how all these facts would line up, but in just his rendition, really suggested in many ways that much of this indictment wouldn't be able to go forward.
You know, we'll have to see what happens.
But I do think just as expansively as he read executive power and as it, you know, narrowly as the idea of unofficial acts could be interpreted based on this opinion, it is very dramatic.
And I have to say, just stepping back and thinking of Chief Justice John Roberts, who I've watched for a very long time, and I've seen hedge in many ways, in many other cases, I felt like there was no hedging.
This could have been written in some ways by Samuel Alito or Clarence -- maybe not Clarence Thomas, because Clarence Thomas is so much further to the right.
But this just was, I felt, like a really bold opinion on the part of the chief here.
JEFFREY GOLDBERG: I want to come back to this, because Roberts obviously is known as an incrementalist and institutionalist, and this seems to be bolder than what we've come to expect.
Is that fair, Jan, or -- JAN CRAWFORD: Yes, but he's always had a very robust view of executive power.
And remember, five of the six justices who were in that majority worked in the executive branch.
So -- JEFFREY GOLDBERG: I want to talk to Charlie about that too.
But before we do that, I want to get into the politics of this a little bit.
And let's start by listening to what President Biden had to say about the ruling.
JOE BIDEN, U.S. President: Today's Supreme Court decision, once again, it will depend on the character of the men and women who hold that presidency that are going to define the limits of the power of the presidency, because the law will no longer do it.
I know I will respect the limits of the presidential powers I have for three and a half years, but any president, including Donald Trump, will no be free to ignore the law.
JEFFREY GOLDBERG: And here is what -- we'll put it up on the, on the screen.
Here's what former President Trump posted on Truth Social.
I'll read it.
It was in all capital letters, but I will read it in a modulated tone or voice.
The Supreme Court decision is a much more powerful one than some had expected it to be.
It is brilliantly written and wise and clears that stench from the Biden trials and hoaxes, all of them that have been used as an unfair attack on Crooked Joe Biden's political opponent, comma, me.
Many of these fake cases will now disappear or wither into obscurity.
God bless America.
Obviously, there's some daylight there and this is a lot about norms versus laws as well.
But, Dan, before we get to the question, the norms question, talk about the political impact of this.
Now, obviously at the outset, we say that anything that pushes Trump's trials or narrows Trump's trials, pushes them further into the future, is good politically for him, but is there benefits to the Democratic side as well?
DAN BALZ, Chief Correspondent, The Washington Post: There may well be.
I mean, obviously this was a victory for former President Trump for the reason you say, which is that it.
It's going to push the trial back.
He's going to be able to go through the election without having to face another trial, presumably.
And it gives him, if he were to be re-elected, freedoms and powers that he didn't necessarily have before.
It doesn't mean he wouldn't try to exercise them when he didn't have them.
So, for him, it's a big victory.
But I think the fact that the president, that President Biden came out that night to talk about this is an indication that he and his team believe this is also something they can use.
I mean, they want to make this election about the threat that they see Donald Trump facing the country.
And what this does is gives them more ammunition to make that case, that if Trump ends up back in the, in the Oval Office, he's going to be able to do whatever he wants.
Not that they weren't going to make that case anyway, but now there is a Supreme Court decision that they can point to that says he's going to be a much freer man to do whatever he wants.
JEFFREY GOLDBERG: Charlie, how much of the power of the president has, or how much of the power that the president chooses not to use, is just because the president -- a president is adhering to norms of behavior rather than the law itself, historically?
CHARLIE SAVAGE: I think that the Trump presidency that we already experienced really demonstrated starkly how much constraint on presidential power is a matter of self-restraint by the person who is in that office.
Huge numbers of laws that give presidents emergency powers for accident situations, leave it up to the president to decide whether those circumstances have been met.
And so Trump demonstrated you could just pretend that there's an emergency today that wasn't there yesterday that allows him to spend money on, say, a border wall with Mexico that Congress was unwilling to fund when he asked them to.
That's just one of myriad examples in which it turns out that constraints on executive power are as much or more about norms, even before this decision, than hard law.
I just want to add one thing to what Dan was saying about how this means there won't be a trial.
In a strange way, or not a strange way, but an important way to think about, it's right that, I agree there's not going to be a trial with a verdict before November.
But the thing the Supreme Court has done, specifically at this point, is ordered the District Court, Judge Chutkan, to sort through all the things that are in the indictment and decide, is this an unofficial act, is this a core executive act, is it another kind of official act that may or may not be the sort that can be prosecuted, and if so, can it or can it not.
And to do that, she's going to have to -- at least has the opportunity to hold something of a mini trial right away.
We'll see how extensively she does this.
Does she call witnesses, does she ask for evidence, the same sort of evidence we might have seen in an actual trial?
And so there may be an airing of what did Trump do when he tried to subvert his election loss leading up to January 6th and on January 6th, not unlike the January 6th committee's hearings, that, in fact, will be aired this summer or fall, even though it won't be the actual trial.
And I'm sure that Trump's legal team will do everything they can to try to put off anything like that as well.
JEFFREY GOLDBERG: But, Dan, talk about the impact of trials and trial-related activities on Trump's popularity with his base and with swing voters.
DAN BALZ: Well, everything we've seen is that it hasn't hurt him in the least.
Maybe there was a little bit of a hiccup after the conviction, that there were some people that pulled back a little bit.
But, in general, the race has been quite stable and steady throughout.
And we thought with the indictments a year ago that that might have an effect.
It didn't.
You know, he cruised through the primaries against all his opponents.
The conviction hasn't had any material effect.
And, you know, there's enormous attention given to these trials or settings.
I'm not sure that what Charlie is talking about.
I mean, I agree with him that there could be this potential airing out of the various actions and things.
I don't know that that will get the attention, say, that the Hush Money trial got where cable news was following it, you know, minute by minute.
So, that's another difference in terms of what voters are going to pick up.
JAN CRAWFORD: And he won't have to be in court.
DAN BALZ: Right.
JEFFREY GOLDBERG: Right.
Obviously, he won't have to sit there and fall asleep, as he did.
Let me turn back to the Supreme Court, Joan and Jan.
I'm very curious if you could talk about what this means, how you interpret this term and this ultimate decision.
What does it tell you about the court today, Joan and then Jan?
JOAN BISKUPEIC: I just think it's a real turning point for this court.
You know, we've seen various steps since we've gotten the supermajority, when Ruth Bader Ginsburg died in September of 2020, quickly succeeded by Amy Coney Barrett, there was a supermajority.
And, you know, the power of just one more justice on the right wing has made such a difference, obviously, with the reversal of Roe v. Wade two years ago and the ending of all constitutional abortion rights.
But this decision is more in keeping with something that John Roberts did, for example, in 2013, when he really narrowly construed voting rights in the Shelby County versus Holder case, or in 2019 rejecting the idea that federal judges could hear partisan gerrymandering cases.
This is kind of a larger question that goes to core Democratic issues.
And I think just -- all of us know his background, cutting his teeth in the Ronald Reagan administration, then being in the George H.W.
Bush administration, you know, just -- he has believed in robust executive power.
But what he and the majority breathe into executive authority and protection, real protection, is of a different magnitude, at least as we understand it now.
And, you know, Jan and Charlie have talked about how things might play out going forward, and maybe it won't immediately have all that much consequence for Donald Trump.
But I think in the whole scheme of things, what this Supreme Court has done, not just for the presidential power, but for its own power, is big.
Its own power is also enhanced by the fact that it will be judges deciding what are official or unofficial acts.
You know, we've talked about, you know, at other times the imperial presidency, but there's a certain imperial notion to what the court has done, and just as one other postscript, in other actions it took this term to enhance judicial authority over federal regulators, diminishing regulatory authority, is of that piece, I think, of, you know, giving the court more authority in the separation of powers.
JEFFREY GOLDBERG: Jan, let me add to your assignment -- let me just answer that question, add to your assignment, by folding in Sonia Sotomayor and her rather dissent.
She wrote at the end of it, with fear for our democracy, I dissent.
And she gave some hypotheticals that are quite dramatic.
But talk about the conservative majority, but tell me where the liberals are, especially Sotomayor JAN CRAWFORD: I mean, Joan and I both have covered the court for over 30 years.
And I've never seen that, ever, with fear for our democracy.
That's new.
And I think that reflects a lot of the language that we saw this term from the dissenters whether it's in the case involving sleeping in parks and whether that could be kind of brought down against the homeless, whether you've got bump stocks.
I mean, we saw some extreme language -- JEFFREY GOLDBERG: Bump stocks on weapons, yes.
JAN CRAWFORD: Bump stocks on weapons from Justice Sotomayor, which I think is really kind of a residual, anger and resentment about the court's decision to overturn Roe versus Wade.
I think they're still dealing with the fallout from Dobbs and the court's decision to overturn Roe.
As far as the executive immunity decision goes, again, Roberts really cares about executive power.
He cares about the structure of government and the roles of the different branches.
Chevron, the administrative state, that's been in -- which they overturned, that's been in the crosshairs for conservatives for years.
The court has not cited it in almost a decade.
JEFFREY GOLDBERG: This is another -- JAN CRAWFORD: Scaling back the power of administrative, yes.
That was one of three cases, and in many ways, perhaps -- JEFFREY GOLDBERG: Constraining The executive branch bureaucracies.
JAN CRAWFORD: Or as conservatives would say, unelected federal bureaucrats, it's the middle in American life.
So, there's three cases -- JOAN BISKUPIC: Or protect the environment and labor and all that.
JAN CRAWFORD: There's three cases.
JEFFREY GOLDBERG: We'll settle that issue, yes, the difference.
JAN CRAWFORD: And they scaled back the power of those agencies in all three cases in significant ways that will make it harder for the agencies to, I think, function.
But Roberts, again, this case, I agree with Dan, on immunity.
It helps both sides.
John Roberts cares about the power of the president and at least five or six -- five others do.
And what they're worried about is future presidents.
They're writing for the ages.
They're worried about a situation, which we see now, where you've got these kind of state level prosecutors who are progressive.
You've got these Republican rogue attorney generals.
And it is about prosecuting future presidents.
And as Donald Trump pointed out, if you think that's farfetched, as Donald Trump pointed out in the debate, Joe Biden, he believes, could be prosecuted for his immigration policy.
He concedes that at the debate.
They're worried about, as Roberts put it in his opinion, this routine prosecution.
And that is something that if Trump were to win, and Biden is the loser after a bitter divisive campaign, this decision will prevent Donald Trump's attorney general from appointing a special counsel to prosecute Joe Biden.
JEFFREY GOLDBERG: Joan, how much of this decision by the conservative supermajority was about making sure that Joe Biden isn't prosecuted by Donald Trump?
JAN CRAWFORD: I don't think it's just Joe Biden.
I mean, I think that's a serious concern.
Not just Biden, future presidents.
JOAN BISKUPIC: Well, the chief wrote that he didn't want to be concerned with present circumstances, and he really minimized any details about January 6th, 2021.
You know, the dissent said, did you forget what happened then?
Really minimize that, you know, did not want to refer to Trump much.
So, overtly said this isn't about Trump.
I don't think overtly or subtly it was about Biden at all.
I don't think this court was worried about what would happen to Joe Biden.
They definitely are worried about the future.
But, you know, how could they not be aware of the political situation now?
John Roberts is and was an excellent lawyer, but he was also pretty politically savvy.
You know, when he was in the White House, he was aware of -- he worked on strategy, helped pick judges.
He knows the politics of the situation, even though he can frame this in the larger sphere, which I -- and I think that's truly what he's interested in.
But it's not that he's unaware of Donald Trump.
And earlier this week, when we had the Manhattan judge say that that case was -- the sentencing was going to be postponed just in case there would be some evidence that had been used against Donald Trump in that case, the business records case, maybe it might not be able to be used, several people said to me, do you think the chief would have ever envisioned the idea that this ruling could have been used to help Donald Trump in that Manhattan trial?
And, I don't think so, but, you know, I don't want to discount that this is a court and with several clerks who are just aware of this whole political picture involving Donald Trump.
JEFFREY GOLDBERG: Right.
In the time that we have left I want to talk, just for a couple minutes, about the apparent polarization and the politicization of the court generally and how this feeds into the largest political trends we're seeing.
Dan, I'm sure you have thoughts about the reduced status of the Supreme Court in the eyes of a lot of different people.
It's just another -- there's been controversies, obviously Clarence Thomas and so on.
Talk about what this all means in terms of intense polarization.
DAN BALZ: Well, I mean, we are in such a polarized environment that when this court moves to the right -- and I think your point is exactly right, that we are living in a post-Dobbs political environment for the Supreme Court.
And that hangs over almost everything they do and the way people interpret what they do.
I mean, one thing we know is that the -- JEFFREY GOLDBERG: And literally the mood in the building at a certain point, right?
JAN CRAWFORD: Oh, definitely, very bitter.
DAN BALZ: I mean, we know that, that public opinion has shifted dramatically against the court.
That, that a majority of people before Dobbs approved of what the court does.
Today, it's down to about 40 percent.
Historically low.
That's the situation we're in.
I think the court is part of the backdrop of any presidential campaign at this point and abortion is in the forefront.
JEFFREY GOLDBERG: Charlie, last thoughts on what this does politically, seeing the Supreme Court as just another partisan and polarized playing field for American politicians.
CHARLIE SAVAGE: I mean, it's certainly a corrosive aspect of the times we're living in.
Is it inaccurate?
JEFFREY GOLDBERG: That's a good question.
And I think we'll have to deal with that question on our next show, because, unfortunately, we have to leave it there for now.
I want to thank our panel.
This is really fascinating.
I'm promoting Charlie to Supreme Presidential Powers Correspondent.
But I want to thank everyone for joining us and for sharing their reporting.
And I want to thank the viewers at home for joining us.
And for more on the Supreme Court's controversial ruling, be sure to read the latest at theatlantic.com.
I'm Jeffrey Goldberg.
Good night from Washington.
