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the special counsel's lawyer, michael dreeben, set an excellent point. in the united states versus nixon, the executive privilege case, you said that information can be introduced as part of an indictment, even if it bumps up against executive privilege. it just can't be the basis for the criminal act. i do think there is that possibility, that the court could steer this in that way and the chief justice i think is acutely aware of some of that dynamic that andrew is talking about. we have lived with the supreme court under republican control our entire lifetimes. i'm 54 years old, it has been every year it has been under republican control. this supreme court is more conservative than any before and is yielding decisions like jobs and the like. i do think the chief is acutely aware of the institutional dynamics of the court. to side again with donald trump and put him above the law, i think that is a bridge too far. that is the hope. we will see what happens. >> andrew, that is kind of the best case we could get out of what i think we heard today. the o
the special counsel's lawyer, michael dreeben, set an excellent point. in the united states versus nixon, the executive privilege case, you said that information can be introduced as part of an indictment, even if it bumps up against executive privilege. it just can't be the basis for the criminal act. i do think there is that possibility, that the court could steer this in that way and the chief justice i think is acutely aware of some of that dynamic that andrew is talking about. we have...
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michael dreeben saying this is the entire ballgame. this is not something you can slice in half and come up with a tidier way of handling it that keeps you out of the politics. >> if you are someone who studied the 2025 project, the platform for a second trump term, there is no separation at a policy level between trump, the private person who would act and trump, the wannabe president again in his official acts. they are totally braided together officially and publicly this time. when he ran the first time, it took a lot of investigative journalist to figure out what he really wanted to do. it was a scoop and a leak that led to the story we knew about and covered. that is being promised for people to do knowingly illegal things at the border. it is now all in a document you can keyword search and the official act and private acts as a second term agenda. so, what they do doesn't just matter in terms of the first ever violent transfer of power in america, having a criminal consequence for the person who masterminded it. it matters shou
michael dreeben saying this is the entire ballgame. this is not something you can slice in half and come up with a tidier way of handling it that keeps you out of the politics. >> if you are someone who studied the 2025 project, the platform for a second trump term, there is no separation at a policy level between trump, the private person who would act and trump, the wannabe president again in his official acts. they are totally braided together officially and publicly this time. when he...
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>> because jack smith is a prosecutor by trade and michael dreeben is an appellate specialistly trade. he has around three decades of experience working with the department of justice where he has argued over 100 cases before the u.s. supreme court which is a distinction that only a few people in the country actually have. he was brought in to jack smith's team because he is considered one of the foremost i didn't mean law perfect ises in country and he is a familiar presence at the supreme court lectern. smith needed anyone to make thoas arguments it was going to be mike dreeben. >> was jack smith there today? >> he was at the counsel table today. >> you said some justices appeared open to this idea, the argument being made by the former president's legal team. which justices? >> there were a few, actually. two of trump's own appointees seemed more receptive to the arguments than perhaps anyone else on the court. particularly justice brett kavanaugh was very concerned about the idea of letting criminal prosecutions go forward over actions taken by the president. he continually floate
>> because jack smith is a prosecutor by trade and michael dreeben is an appellate specialistly trade. he has around three decades of experience working with the department of justice where he has argued over 100 cases before the u.s. supreme court which is a distinction that only a few people in the country actually have. he was brought in to jack smith's team because he is considered one of the foremost i didn't mean law perfect ises in country and he is a familiar presence at the...
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and that's why, just to be clear, what michael dreeben was arguing was twofold. he was saying there should not be criminal immunity for official acts except for a very small core function of the presidency. so you don't get to this issue. he said for official acts, there should be no criminal immunity except for things like pardon power, you know, appointment power, sort of very -- things not at issue in this case. his second argument was that there shouldn't be immunity for unofficial acts and this case only involves unofficial acts. >> and i want to pick up on that point and ask neal another question and joyce here, because neal, one of the examples, the hypotheticals that justice roberts early in the argument against john sauer, the attorney for donald trump, was, well, what if a president appoints an ambassador and then takes a bribe from them, so the appointment of the ambassador is part of a presidential act. taking the bribe is a clearly criminal act. how do you separate those two things? >> yeah, and i think the answer to that really revealed the differen
and that's why, just to be clear, what michael dreeben was arguing was twofold. he was saying there should not be criminal immunity for official acts except for a very small core function of the presidency. so you don't get to this issue. he said for official acts, there should be no criminal immunity except for things like pardon power, you know, appointment power, sort of very -- things not at issue in this case. his second argument was that there shouldn't be immunity for unofficial acts and...
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michael dreeben went into this knowing he had a difficult path to walk. in fact, in the government's brief they had argued in the alternative, that if the court was inclined to go somewhat the direction it appears to have been going, that the government had fall-back positions including something that surfaced in court today, they were willing to argue only the non-official acts were crimes although they believe they're still entitled to use evidence of official acts to show his knowledge and intent. they had crafted this fallback position for such an emergency and dreeben executed that very well. i think you're right justice barrett appeared to be more on the side of the three progressive justices. she seemed to have some stepback from those asserted by justice alito. the big wild card is where the chief justice is. it would be unlikely he would want to be his legacy to giving donald trump a path to forgiveness for a coup, he was the most difficult justice to read. >> they had a discussion about the court ruling. it has to have some better limiting princ
michael dreeben went into this knowing he had a difficult path to walk. in fact, in the government's brief they had argued in the alternative, that if the court was inclined to go somewhat the direction it appears to have been going, that the government had fall-back positions including something that surfaced in court today, they were willing to argue only the non-official acts were crimes although they believe they're still entitled to use evidence of official acts to show his knowledge and...
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>> because jack smith is a prosecutor by trade and michael dreeben is an appellate specialistly trade. he has around three decades of experience working with the department of justice where he has argued over 100 cases before the u.s. supreme court which is a distinction that only a few people in the country actually have. he was brought in to jack smith's team because he is considered one of the foremost i didn't mean law perfect ises in country and he is a familiar presence at the supreme court lectern. smith needed anyone to make thoas arguments it was going to be mike dreeben. >> was jack smith there today? >> he was at the counsel table today. >> you said some justices appeared open to this idea, the argument being made by the former president's legal team. which justices? >> there were a few, actually. two of trump's own appointees seemed more receptive to the arguments than perhaps anyone else on the court. particularly justice brett kavanaugh was very concerned about the idea of letting criminal prosecutions go forward over actions taken by the president. he continually floate
>> because jack smith is a prosecutor by trade and michael dreeben is an appellate specialistly trade. he has around three decades of experience working with the department of justice where he has argued over 100 cases before the u.s. supreme court which is a distinction that only a few people in the country actually have. he was brought in to jack smith's team because he is considered one of the foremost i didn't mean law perfect ises in country and he is a familiar presence at the...
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and he was just tweaking michael dreeben. i got to say michael dreeben was the advocate for the prosecutors. he's a genius, absolute genius. had 50 arguments for us supreme court. here's my prediction. make it simple okay they are going to reject absolute immunity. >> okay number two, they're all going to agree that private acts are not under any immunity. what they're gonna do is that middle of the sandwich, they're going to have this very broad definition of official acts and. gonna kick it back to judge chunking to have a pretrial hearing to go through the indictment, get rid of any surpluses that violates the test that they are going to create. and if that is the case, you're going to have a pretrial hearing if there's a ruling against president trump mr. trump is going to go up and this trial may be held in 20 okay. >> so why itself that's imbedded thing even asking for qualified in it, he's making a legal argument about absolute immunity. >> so if you're telling me that we're going to have to sit here and watch the supr
and he was just tweaking michael dreeben. i got to say michael dreeben was the advocate for the prosecutors. he's a genius, absolute genius. had 50 arguments for us supreme court. here's my prediction. make it simple okay they are going to reject absolute immunity. >> okay number two, they're all going to agree that private acts are not under any immunity. what they're gonna do is that middle of the sandwich, they're going to have this very broad definition of official acts and. gonna...
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dreeben, said such presidential immunity has no foundation in the constitution or the supreme court's history. >> this court has never recognized absolute criminal immunity for any public official . his novel theory would immunize former presidents for criminal liability for bribery, treason, sedition, murder, and here conspiring to use fraud to overturn the results of an election and perpetuate himself in power. >> the supreme court justices acknowledged the magnitude of the hearing, and for more than 2.5 hours wednesday, they grilled attorneys on both sides in assessing the official acts of a president. >> do you differentiate between the president acting as president and the president acting as candidate? >> trump's attorney said immunity should not cover private acts, but should cover official acts and the organization of alternate slates of electors. was trump taking official action? justice ketanji brown jackson asked about the dangers of immunity, the potential for criminal liability is taken off the table. >> wouldn't there be a significant risk that future presidents would be
dreeben, said such presidential immunity has no foundation in the constitution or the supreme court's history. >> this court has never recognized absolute criminal immunity for any public official . his novel theory would immunize former presidents for criminal liability for bribery, treason, sedition, murder, and here conspiring to use fraud to overturn the results of an election and perpetuate himself in power. >> the supreme court justices acknowledged the magnitude of the...
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. >> but the government's attorney, michael dreeben, said such presidential immunity has no foundation in the constitution or the supreme court's history. >> this court has never recognized absolute criminal immunity for any public official. his novel theory would immunize former presidents for criminal liability, for bribery, treason, sedition, murder, and here conspiring to use fraud to overturn the results of an election and perpetuate himself in power. >> the supreme court justices acknowledged the magnitude of the hearing, and for more than 2.5 hours wednesday, they grilled attorneys on both sides. >> do you differentiate between the president acting as president and the president acting as candidate? >> trump's attorney said immunity should not cover private acts, but should cover official acts, and the organization of alternate slates of electors. was trump taking official action? justice ketanji brown jackson asked about the dangers of immunity. >> the potential for criminal liability is taken off the table. wouldn't there be a significant risk that future presidents would be e
. >> but the government's attorney, michael dreeben, said such presidential immunity has no foundation in the constitution or the supreme court's history. >> this court has never recognized absolute criminal immunity for any public official. his novel theory would immunize former presidents for criminal liability, for bribery, treason, sedition, murder, and here conspiring to use fraud to overturn the results of an election and perpetuate himself in power. >> the supreme court...
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but the government's attorney, michael dreeben, said such presidential immunity has no foundation in the constitution or the supreme court's history. >> this court has never recognized absolute criminal immunity for any public official. his novel theory would immunize former presidents for criminal liability for bribery, treason, sedition, murder, and here conspiring to use fraud to overturn the results of an election and perpetuate himself in power. >> the supreme court justices acknowledged the magnitude of the hearing, and for more than 2.5 hours wednesday, they grilled attorneys on both sides. >> do you differentiate between the president acting as president and the president acting as candidate? >> trump's attorney said immunity should not cover private acts, but should cover official acts and the organization of alternate slates of electors. was trump taking official action? justice ketanji brown jackson asked about the dangers of immunity. >> the potential for criminal liability is taken off the table . wouldn't there be a significant risk that future presidents would be embol
but the government's attorney, michael dreeben, said such presidential immunity has no foundation in the constitution or the supreme court's history. >> this court has never recognized absolute criminal immunity for any public official. his novel theory would immunize former presidents for criminal liability for bribery, treason, sedition, murder, and here conspiring to use fraud to overturn the results of an election and perpetuate himself in power. >> the supreme court justices...
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a concern echoed by justice department attorney michael dreeben. >> his novel theory would immunize former presidents for criminal liability for bribery, treason, murder, and here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power. such presidential immunity has no foundation in the constitution. the framers knew too well the dangers of a king who could do no wrong. >> and about that king thing. in the new york times, quote, trump has asked to the supreme court if he is, in effect, a king. and at least four members of the court, among them the so- called originalists have said in essence that they will have to think about it. the conservative justices signaled they are likely to send trump's immunity claim back to the lower court, which could delay his federal election interference trial for months. meeting at trial is unlikely to start before the november election. meanwhile, trump's fake elector scheme is finally being prosecuted in arizona with an indictment charging mark meadows, rudy giuliani, and 16 other trump allies, and naming trump him
a concern echoed by justice department attorney michael dreeben. >> his novel theory would immunize former presidents for criminal liability for bribery, treason, murder, and here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power. such presidential immunity has no foundation in the constitution. the framers knew too well the dangers of a king who could do no wrong. >> and about that king thing. in the new york times, quote, trump has...
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>> brian, i think the most important concession was by michael dreeben who was the lawyer for jack smith and for the biden justice department who basically conceded that there is presidential immunity from prosecution. now, he doesn't allow that it's as robust as president trump argues. but he certainly made a concession to the court that there is an am bit of executive authority that congress can't criminalize once you make a decision that there is presidential immunity, then the question becomes what acts does it cover? so i think by the end of the argument, it became at least to my mind much more likely that the court may resolve this by sending the case back to trial judge in washington with instructions to go through the indictment and sort out what is an official act of the presidency what is a private act that isn't covered by immunity. if that's what the court does, i don't see how this case gets to trial prior to election day. >> ainsley: what happens if this does. smith's way on almost everything. you know, ainsley, judges behave better when they know someone is checking their
>> brian, i think the most important concession was by michael dreeben who was the lawyer for jack smith and for the biden justice department who basically conceded that there is presidential immunity from prosecution. now, he doesn't allow that it's as robust as president trump argues. but he certainly made a concession to the court that there is an am bit of executive authority that congress can't criminalize once you make a decision that there is presidential immunity, then the...
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dreeben, said such presidential immunity has no foundation in the constitution or the supreme court's history. >> this court has never recognized absolute criminal immunity for any public official . his novel theory would immunize former presidents for criminal liability for bribery, treason, sedition, murder, and here conspiring to use fraud to overturn the results of an election and perpetuate himself in power. >> the supreme court justices acknowledged the magnitude of the hearing, and for more than 2.5 hours wednesday, they grilled attorneys on both sides. >> do you differentiate between the president acting as president and the president acting as candidate? >> trump's attorney said immunity should not cover private acts, but should cover official acts and the organization of alternate slates of electors. was trump taking official action? justice ketanji brown jackson asked about the dangers of immunity, the potential for criminal liability is taken off the table. >> wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with abandon whil
dreeben, said such presidential immunity has no foundation in the constitution or the supreme court's history. >> this court has never recognized absolute criminal immunity for any public official . his novel theory would immunize former presidents for criminal liability for bribery, treason, sedition, murder, and here conspiring to use fraud to overturn the results of an election and perpetuate himself in power. >> the supreme court justices acknowledged the magnitude of the...
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michael dreeben, an attorney for the justice department, noted to the justices that another way to frame this argument is to ask whether the rule of law applies to the president do you think that's a fair way to frame this case well, i certainly think it is a favorable frame to him what he's trying to get at is to say it shouldn't it be that we look back to our basic principle that no person is above the law, that the rule of law applies equally to all of us i think that is compelling but the truth is that there is supreme court precedent that says in the civil context that we do treat president's differently. >> now, we've never been here, we've never had an answer for the criminal context but i think well, that broad statement is really appealing what the supreme court's really doing is going one step below that and saying, but there is actually something different in their view about the president. and they're trying to craft a decision that balances the rule of law well, also balancing respect for executive duties. and frankly, what you've heard a lot is the fear that if they say tha
michael dreeben, an attorney for the justice department, noted to the justices that another way to frame this argument is to ask whether the rule of law applies to the president do you think that's a fair way to frame this case well, i certainly think it is a favorable frame to him what he's trying to get at is to say it shouldn't it be that we look back to our basic principle that no person is above the law, that the rule of law applies equally to all of us i think that is compelling but the...
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arguing for the special counsel is michael dreeben who previously worked on special counsel robert mueller's team arguing for donald trump is john sower antonin scalia law clerk. justices who typically like to shy away from politics cannot escape it in this case. they are entering the nerve center of the elections. if they say that trump is not immune, the engines of the case will kick back on and start moving if the justices side with the former president, it's possible he does not go to trial at all here in washington, d.c. again, arguments kick off at 10:00. we definitely expect those to last at least two hours, perhaps even more. back to you. >> ainsley: thank you, david. the ruling is expected in late june. so that would be in the middle of the summer when we will find out what they decide. >> brian: then, of course, if they do something like the documents case, you got to go through all the documents and get the security clearance in order to read some of the documents. even if you are a paralegal working with a lawyer, there is so many documents to go through you have to wonder how th
arguing for the special counsel is michael dreeben who previously worked on special counsel robert mueller's team arguing for donald trump is john sower antonin scalia law clerk. justices who typically like to shy away from politics cannot escape it in this case. they are entering the nerve center of the elections. if they say that trump is not immune, the engines of the case will kick back on and start moving if the justices side with the former president, it's possible he does not go to trial...
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. >> michael dreeben, arguing for special counsel, jack smith, countered, claiming that absolute immunity would allow a president to commit any and all crimes that will his novel theory would immunize former presidents for criminal liability, for bribery, treason, sedition murder, and here conspiring to use fraud to overturn the results of an election. and perpetuate himself, empower the justices pressing both litigants about when a president can't be prosecuted posing several scenarios isn't an official act. >> if it's an official act, it's appeasement in official on the way you've described that hypothetical, it could well be justice ketanji brown, jackson raising concerns about presidential power without limits, you seem to be worried about the president being chilled. i think that we would have i have a really significant opposite problem if the president wasn't chilled, i'm trying to understand what the disincentive is from turning the oval office into the seat of criminal activity in this country and asking, why then did former president nixon need a pardon after he left office? >>
. >> michael dreeben, arguing for special counsel, jack smith, countered, claiming that absolute immunity would allow a president to commit any and all crimes that will his novel theory would immunize former presidents for criminal liability, for bribery, treason, sedition murder, and here conspiring to use fraud to overturn the results of an election. and perpetuate himself, empower the justices pressing both litigants about when a president can't be prosecuted posing several scenarios...
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i thought in many what we did a concession at all was michael dreeben essentially admitting the attorney for the special counsel's office, essentially admitting that these facts were so inextricably intertwined in a colloquy with justice barrett, that it would be very difficult to separate them out on remand. that's how i interpret for his statements at least. >> well, and to translate that for people watching, that means that basically, if it wasn't official act, they would not be able to use that potentially at trial. he was arguing they should be able to use it to paint a bigger picture. but trump has argued, total immunity. he has not said, well, some of these are private x this would mean the case could at least in part go forward and go to trial. >> we believe that without the official acts charged in the indictment, there is no case. >> we've been very consistent in our position from the start, starting with the district court proceeding through the circuit. now at the us supreme court, that what we're talking about is absolute immunity. yes. but absolute immunity just for a presi
i thought in many what we did a concession at all was michael dreeben essentially admitting the attorney for the special counsel's office, essentially admitting that these facts were so inextricably intertwined in a colloquy with justice barrett, that it would be very difficult to separate them out on remand. that's how i interpret for his statements at least. >> well, and to translate that for people watching, that means that basically, if it wasn't official act, they would not be able...
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oh was michael dreeben essentially admitting the attorney for the special counsel's office essentially
oh was michael dreeben essentially admitting the attorney for the special counsel's office essentially
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dreeben, lawyer for the special counsel's office that has brought the prosecution against trump for trying to stay in after he lost the election, dreeben is trying to ask the question what counts as an official act by a president versus what's an unofficial act by a president. the reason he was engaging in that is because as the conservative justices there katie phang who was just there kept telling us, the conservative justices kept putting that forward as the most important thing to be derived from today's argument. the next thing they wanted to do, the next step they wanted to take in this case, not nentally, a time consuming start it all over kind of step that would have the practical effect of making absolutely sure that there's no chance donald trump stands trial before the election. that is what the trump side wants. that seems to be what the hard line conservatives on the supreme court want as well. but while those conservative justices today were demanding that lawyers for both sides dance on the head of this particularly stupe utd pin, the more liberal justices did use tod
dreeben, lawyer for the special counsel's office that has brought the prosecution against trump for trying to stay in after he lost the election, dreeben is trying to ask the question what counts as an official act by a president versus what's an unofficial act by a president. the reason he was engaging in that is because as the conservative justices there katie phang who was just there kept telling us, the conservative justices kept putting that forward as the most important thing to be...
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dreeben's discussion of the facts of the case and what donald trump tried to do here. you saw justice alito keep trying to say, i don't want to talk about this case. i want to talk about the hypothetical world. as you point out, there will be a merging of the hypothetical world and the facts of this case if donald trump comes to power again. everyone who said, don't take donald trump literally, they were proven wrong. donald trump should have been taken literally. donald trump tried to overturn a free and fair election through tactics that led to violence and an attempted insurrection at the nation's capitol. if the courts retreat to some ivory tower theoretical approach, then the next time he is going to be more empowered. you are right, against that split screen, we have to continue to fight day in, day out for voters to try to make sure they can vote and have their ballots counted. >> what's amazing is that when we look back on this time, it probably represents in modern times the most aggressive pushback and sort of retrenchment taking away the right to vote from t
dreeben's discussion of the facts of the case and what donald trump tried to do here. you saw justice alito keep trying to say, i don't want to talk about this case. i want to talk about the hypothetical world. as you point out, there will be a merging of the hypothetical world and the facts of this case if donald trump comes to power again. everyone who said, don't take donald trump literally, they were proven wrong. donald trump should have been taken literally. donald trump tried to overturn...
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twice by michael dreeben arguing for the government. it was a united states versus hawaii court case he was talking about. the discussion wasn't centered on the former president, which was unusual. i've handled 50 appellate arguments, none in the supreme court, but i've never had a case where the defendant was so absent from the argument. i think, to the point of your question, willie, a strong possibility is that the court will come up with a new test, asking the district judge, tanya chutkan, to decide what conduct in the indictment is official, what was personal, or what was president trump opposed to candidate trump. that could delay the proceedings. although, if she is determined, she might be able to get the case to trial. increasingly unlikely. >> joyce, the consensus view from legal experts, not just progressive ones but conservatives, as well, is that it is a preposterous argument to say a president has absolute immunity, blanket immunity. in other words, he or she could do whatever he or she wants to do and never be prosecuted
twice by michael dreeben arguing for the government. it was a united states versus hawaii court case he was talking about. the discussion wasn't centered on the former president, which was unusual. i've handled 50 appellate arguments, none in the supreme court, but i've never had a case where the defendant was so absent from the argument. i think, to the point of your question, willie, a strong possibility is that the court will come up with a new test, asking the district judge, tanya chutkan,...