Trump’s Presidential Immunity Defense with Saraphin Dhanani and Benjamin Wittes
The Lawfare Podcast
The Lawfare Institute
4.7 • 6.4K Ratings
🗓️ 18 September 2023
⏱️ 41 minutes
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Summary
Some time soon, former President Donald Trump is expected to file a motion in U.S. District Judge Tanya Chutkan’s courtroom to dismiss the Jan. 6 case against him based on some theory of presidential immunity. In a recent piece for Lawfare, our very own Legal Fellow Saraphin Dhanani and Editor-in-Chief Benjamin Wittes write, “The bottom line is that this defense is a bit of a moon shot for Trump, but it’s not a crazy moon shot.”
Lawfare Managing Editor Tyler McBrien sat down with Saraphin and Ben to talk through their article, “The Trump Defense, Part II: The Presidential Immunity Gambit.” They discussed the general contours of the defense’s argument and strategy, the prosecution’s likely counterarguments, and all the murkiness and unknowns in between. They also talked about how, even if Judge Chutkan does not accept Trump’s immunity defense—and even if the appellate courts ultimately affirm her judgment on that score—the immunity defense could still be useful to the former president.
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Transcript
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| 0:00.0 | The following podcast contains advertising to access an ad-free version of the LawFair |
| 0:07.2 | podcast become a material supporter of LawFair at patreon.com slash LawFair, that's patreon.com slash |
| 0:16.9 | LawFair. Also check out LawFair's other podcast offerings, rational security, chatter, LawFair |
| 0:25.6 | no bull, and the aftermath. |
| 0:31.1 | Prosecutors can also make the argument that the Constitution also confers no power to the |
| 0:37.8 | president to defra the United States for that matter, or to conspire against the voting |
| 0:42.4 | rights of citizens. In fact, again, it's specifically in trust, electoral vote counting matters |
| 0:49.5 | to a different branch of government. So Trump's actions may not be in the article |
| 0:55.7 | to domain, but we're not getting there. Prosecutors aren't getting there. They're talking |
| 1:00.0 | about whether the clear statement rule would apply here, and it need not matter because |
| 1:05.5 | all of Trump's alleged actions in the indictment prosecutors may argue is reserved either for |
| 1:11.0 | another branch of government, or it falls squarely within this idea of high crimes and misdemeanors, |
| 1:17.3 | and so we don't even have to reach the question of presidential immunity. |
| 1:21.3 | I'm Tyler McBrion, managing editor of LawFair, and this is the LawFair podcast, September |
| 1:26.3 | 18th, 2023. Some time soon, former president Donald Trump is expected to file a motion, |
| 1:32.6 | in US District Judge Tonya Chutkin's courtroom to dismiss the January 6 case against him, |
| 1:37.5 | based on some theory of presidential immunity. In a recent piece for LawFair, a very |
| 1:42.5 | own legal fellow Seraphine Denani, an editor-in-chief Benjamin Woodace Wright, the bottom line |
| 1:47.0 | is that this defense is a bit of a moonshot for Trump, but it's not a crazy moonshot. |
| 1:51.8 | I sat down with Seraphine and Ben to talk through their article, The Trump Defense Part |
| 1:55.3 | 2, The Presidential Immunity Gambit. We discussed the general contours of the defense's argument |
| 2:00.5 | and strategy, the prosecution's likely counterarguments, and all the merceness and unknowns |
... |
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