You might think you know why Marbury v. Madison is important: it set the precedent whereby the Supreme Court decides whether laws are constitutional or not, a power known as judicial review. But what else does this landmark decision say? And why is this case from more than two hundred years ago cited so prominently in former president Donald Trump's current Supreme Court brief?
In this episode, host Hannah McCarthy "Hansplains" the connection between this famous case and current events, with the help of Quinnipiac University's Wayne Unger.
For reference, here’s more about Baker v. Carr, the case Hannah talks about in the episode.
Transcript:
Note: This transcript was AI-generated and may contain errors
Hannah McCarthy: Hello, everyone.
Nick Capodice: Hannah.
Hannah McCarthy: Hello. Hi. We're at it again. Here we go. Welcome back to another round of Hannah Hansplains things to people who know more than me most of the time. I am Hannah McCarthy.
Rebecca Lavoie: I'm Rebecca Lavoie,
Nick Capodice: I'm Nick Capodice.
Hannah McCarthy: I'm Christina Phillips,
Hannah McCarthy: And this is Civics 101, the podcast where on occasion, we sit around a table and gab about the state of the country on mic instead of via furious texting on the group chat. And today I want to talk about a Supreme Court case from 221 years ago and a Supreme Court case from two days in the future.
Nick Capodice: Oh, wow.
Hannah McCarthy: Yeah. So the case from 221 years ago, some would say it's old news, but it's news that still makes a difference to this day. 1803 Marbury versus Madison. I am not going to lay out the whole thing right here. Don't worry about that. But does anyone here have a summary? Rebecca Lavoie!
Christina Phillips: Yeah. Both of their hands went up like the most excited children.
Hannah McCarthy: But, Nick, we know Rebecca's never on.
Nick Capodice: Let her go ahead. I've done enough on this.
Rebecca Lavoie: This is one that I actually know. Okay. And only in part because I watched John Adams on HBO. Okay, so I know that when Jefferson beat John Adams for the presidency before John Adams left office, he and Congress passed a law that allowed him to basically create all these new judgeships. And Marbury was appointed to be, I think, a justice of the peace in Washington, D.C.. And then when Jefferson became president, those papers were never delivered so that Marbury could get his judgeship. And he was mad about it. He didn't like it at all. So he went to the Supreme Court and said, I need those papers to be delivered. And they, in a unanimous decision, not only said he ruled for Marbury, but they also said the entire law was unconstitutional, thereby setting the precedent that the Supreme Court could declare a law unconstitutional.
Hannah McCarthy: And in fact, the court said, While Madison is breaking the law, we can't even talk about it. That's right. Because like so. So Marbury is right. But we cannot force anyone to issue a writ of mandamus because this law is unconstitutional.
Rebecca Lavoie: That's right. And Marbury never got to be a judge.
Nick Capodice: His whole life. He just wanted to be a judge.
Rebecca Lavoie: That's all he wanted.
Christina Phillips: I'm glad to know. What? How you say mandamus now, because I was like mandamus. Mandamus? Yeah. I think it's like.
Rebecca Lavoie: It's like certiorari
Nick Capodice: Yes, sir. certiorari
Rebecca Lavoie: Right.
Nick Capodice: Of mandamus. Sounds like Matt Damon.
Archive: How do you like them apples?
Hannah McCarthy: Let me ask you this. When the court said this law, this law that Congress passed right before Jefferson came in is unconstitutional, what was the court doing?
Nick Capodice: Is this the magical expression, judicial review? That's right.
Nick Capodice: Yeah. What is it?
Nick Capodice: It's that the judicial branch doesn't do stuff. That's the executive branch's job. Judicial review means that it is their job to interpret the Constitution and to decide what laws are constitutional or not. They can't make you do something, but they can tell you that a law should or should not exist.
Christina Phillips: It was the first time that judicial review was applied, right? Like so before the Constitution was kind of seen as symbolic, and this was the first time that it was like, oh no, the law of the Constitution is above the law written by Congress.
Nick Capodice: Yeah, it was the Supreme Court giving itself the power to which we now associate it today.
Nick Capodice: There it.
Hannah McCarthy: Is. Okay. So that's the big thing with Marbury versus Madison. The Supreme Court, as had been hinted of before but never actually stated explicitly, was like, actually, yeah, we do have the crown of judicial review. We get to interpret the Constitution. So what does this have to do with this future case that I'm talking about? Kind of nothing in terms of judicial review, but a lot in terms of Marbury versus Madison. So I was reading through Marbury versus Madison a few weeks ago, as you do, and.
Rebecca Lavoie: In the tub with a glass of wine.
Hannah McCarthy: Enjoying myself, relaxing, unwinding after a long day, um, and I came across some passages that I had never paid attention to before because Marbury versus Madison judicial review. Fascinating. That's the point of it, right? And I'm reading these paragraphs in the opinion, and I'm thinking to myself, I kind of laughed. I was like, you know, if I were the lawyer of a former president facing criminal charges, I would probably try something like this. Like what I was reading, in the opinion of Marbury versus Madison from 1803. So, Rebecca, can I ask you to read one paragraph in particular? This is the one that, like, got me thinking.
Rebecca Lavoie: So here's the quote from John Marshall. The province of the court is solely to decide on the rights of individuals, not to inquire how the executive or executive officers perform duties in which they have a discretion, questions in their nature, political or which are by the Constitution and laws submitted to the executive, can never be made in this court.
Nick Capodice: Hmm.
Christina Phillips: Ooh!
Hannah McCarthy: Anyone have any little shinings of thought before we dig in here?
Nick Capodice: I just want to say I never knew this was part of Marbury versus Madison. I just always. I always tied it to the judicial review. Not to this question of politics.
Rebecca Lavoie: Yeah, but they're basically saying they can't decide political matters.
Hannah McCarthy: That's what I'm saying. Yeah, yeah. But a big, important part of that, Rebecca, is not to inquire how the executive or executive officers perform duties in.
Rebecca Lavoie: Which they have a discretion. Yeah, yeah. Wow. That's a big deal.
Hannah McCarthy: Big deal.
Rebecca Lavoie: And we've heard echoes of that in some of the court cases that we've heard in recent news, where it's like when somebody is president, they have alleged presidential immunity, maybe. And that's kind of maybe what this is hinting at a little bit.
Nick Capodice: Yeah. You are not saying that in the upcoming case about former President Donald Trump, people are looking at Marbury versus Madison as precedent.
Hannah McCarthy: I am it is it is cited quite a bit. So the Supreme Court case, two days in the future. Can anyone tell me what this case is that I'm referring to?
Christina Phillips: This is the question of presidential immunity, whether or not Trump is immune from criminal charges for actions he took leading up to January 6th and the riot on the Capitol, and whether he can be prosecuted by the Justice Department. Yep.
Hannah McCarthy: So I read the brief that former President Donald Trump's lawyers actually did send to the Supreme Court in anticipation of this trial. And lo and behold, former President Trump's lawyers are quoting Marbury versus Madison like it is going out of style.
Nick Capodice: Wow.
Hannah McCarthy: So my question is, what is this like? What's going on? What does it mean to say that the Supreme Court is not to inquire how the executive performs duties in which they have a discretion? So I talked to someone smarter than me. Shall we hear from him?
Nick Capodice: Yes. Sure. Please.
Wayne Unger: So the political question doctrine is essentially made by the Supreme Court. It's it's law made by the Supreme Court that says there are some cases, some legal issues that are better left to the other branches of the federal government, such as the executive branch and the legislative branch. And there are various reasons for why that is. So, for example, the political question doctrine has been invoked when it comes to, say, sterm military actions. When the president has the very clear mandate as commander in chief, the court decides, hey, it's probably best that we don't interfere when, for example, the executive branch has a clearly granted constitutional authority.
Hannah McCarthy: So that is Professor Wayne Unger, assistant professor at Quinnipiac University School of Law. And a major shout out to Wayne for saving my hide, because I was hunched over attempting to make sure I knew what I was talking about today. And he was like, yeah, I got you. So any initial thoughts about what you just heard from Wayne? He's talking about something called the political question doctrine, and that is what we call this idea about the Supreme Court not having anything to do with ruling on issuing opinions on the official duties of a president.
Rebecca Lavoie: I guess my initial thought is, how do you define official duties of the president? Right. So is there a job description for the president of the United States? And when do you decide that the president is coloring outside of those lines?
Hannah McCarthy: That's a great question. Yeah. But as Nick and I have talked about in the past, the only job description for the president is in the Constitution, first and foremost, to uphold that the Constitution. And then, you know, there are a lot of laws that Congress has passed that have to do with the functioning of the United States, that the president has to abide by. But we know the president is commander in chief, for example, and the head of the executive branch, which is huge.
Nick Capodice: What's interesting to me is that when it comes to Congress, like there is so much more in the Constitution about what falls under the purview of the legislative branch. And there's quite a bit less about what the president is responsible for doing. And there's like nothing about what the Supreme Court is responsible for doing. So I just feel like when it gets to what can the president do? There's going to be a lot of interpretation as opposed to just taking the words in the Constitution itself.
Hannah McCarthy: So this political question doctrine thing, we have the court saying, you know, yes, Marbury is do this, but no, we can't order anyone to do it. Why can't we order anyone to do it? Well, because this law is unconstitutional, but also because. Is this is a political question. And the court at this particular time is looking at Adams and Jefferson and Madison and Marbury, and they're like, no way. Like we are not messing around with all of.
Rebecca Lavoie: This, right? Because it was just an election. And this act was passed in part to frustrate Jefferson. Right?
Nick Capodice: Oh, yeah. Absolutely. It was a political act. You know, some say that Jefferson threw the things in a fire. Yeah. I don't know if that's true or not.
Nick Capodice: But so.
Wayne Unger: The Supreme Court is basically like, I don't want to touch this, you know, like because the ramifications could fall on us. Like we made a big mistake and everybody's going to get really mad. So this dynamic is if the Chief Justice had said, you must deliver the commission that authorizes Marbury to take his position, it was a good chance that Marbury would not have received it because Thomas Jefferson and James Madison would have refused to deliver it. So that is the dynamic that kind of set up the kind of origin, so to speak, of the political question doctrine, where there are some actions that article three, the federal courts should not wade into and stop short of doing because of a political reason of sorts.
Hannah McCarthy: Right. It's a political question. It's kind of murky, but the court doesn't want to wade into it. But obviously it's the Supreme Court. They can't just say, well, this is political. We can't do anything about that. So, you know, even though these are just like six dudes meeting in whatever space in the new Capitol building they were allowed to meet in, because it's 1803, the court is new. They don't have their own space. They are still the highest court in the land. They have to have a reason for why they're doing things. So the political question doctrine is born now. Does everyone feel like they get what the political question doctrine is?
Nick Capodice: I do, but I wouldn't mind hearing you say it one more time.
Hannah McCarthy: All right. I'm going to have Wayne weigh in here before we keep going. How about that?
Wayne Unger: The political question doctrine is, in a way, very intangible. I, of course, don't use that in the literal sense of intangibility versus tangibility, but I say it as a kind of loose standard, right? Where the federal courts loosely apply it. Sometimes they rigidly stick to it, sometimes they deviate from it. When something could be a political question. I'll give you an example, because I teach constitutional law to first year law students. Political question that doctrine is, is oftentimes difficult for first year law students to understand because, well, you could make an argument that a case before the court is a political question, and then you can make another argument that it is not a political question. And then the court ultimately has to decide whether it is or is not. All of that is to say there is great debate as far as what is a political question or not.
Rebecca Lavoie: Did this come up in Bush v Gore?
Nick Capodice: We're going to get to Bush v Gore.
Hannah McCarthy: So this is Bush v Gore comes up.
Archive: It's slightly detached.
Archive: Democrats charge a confusing ballot layout, let voters to think they were punching the ballot for al Gore when they were actually voting for Reform Party candidate Pat Buchanan.
Archive: 3500 people did not vote for Pat Buchanan. Come on. This is heavily Democratic, Palm Beach County.
Archive: It is a ballot that was approved by an elected Democratic official. And hey, guess what? There were no complaints until after the election.
Hannah McCarthy: What I want everyone to remember over the course of this episode is that the court just gets to decide what it's going to do. It gets to decide what is best and why, where it gets to weigh in and where it doesn't. And there is this principle established in Marbury versus Madison. Does it mean that they have to rigidly adhere to various interpretations of it? No.
Nick Capodice: I do not think that there is a Supreme Court case that we have talked about on this show. Out of like 20 that could not be argued, was political in nature, like every single one.
Hannah McCarthy: And to be absolutely clear, the political question doctrine as laid out in Marbury versus Madison is specific to the executive and official acts of the executive and executive officers. Okay? It is not separate from that. It's not all notions that could be remotely political. It has to do specifically with the executive branch. Got it. And kind of messing with the executive branch. So I do want to say the court did actually refine what makes a political question a political question. It's in a case called Baker v Carr 1962. I am not going to go over the specifics now because I think I would bore you guys, but I'm going to put it in the web post for this episode in case people want to know what these political questions are. But Wayne said he uses an example with his first year law students right to try to explain the political question doctrine. And this is an example of the court weighing in on something the president did in the course of his duties, his official duties. Right, which include following the law. That is a duty, right? Does anyone here remember Biden v Nebraska 2023?
Nick Capodice: I mean, we probably all do in this room. Sure. Wasn't this the, uh, forgiveness of student loans case that went before the Supreme Court and the Supreme Court said, you can't do that tonight?
Archive: The Supreme Court dealing a major defeat to President Biden, striking down his plan to erase more than $400 billion in federal student loan debt. Chief Justice.
Hannah McCarthy: So the Heroes act had a provision that allowed the Secretary of Education to waive or modify certain financial assistance programs. Biden is promising anywhere between 10 and $20,000 of student loan debt forgiveness for all people who are having their loans facilitated by the federal government. Right. And so this is what happened in that case.
Wayne Unger: As the Biden administration argued before the Supreme Court, there was a statute that gave him the authority to the words or modify or waive that federal student loan program. And so that's what the Biden administration invoked. They said, hey, this is the act, the Heroes act, specifically this statute. And these are the words that give us the authority to cancel these student loans. And those words were waive or modify. And, of course, the discussion before the Supreme Court for that case was, well, what is a waiver and what is a modification? And whether a cancellation of 10 or $20,000 per borrower is a modification or something totally different. And ultimately the court said, no, it's not a modification, it's not a waiver. So it's not within the zone of authority that Congress gave the president of the United States.
Hannah McCarthy: So some other examples of the court weighing in on the acts of a president, because the court does, and the specifics of the criminal charges and immunity question in this Trump case in 2024, that's new. But a lot of the basics of this Trump case are not at all new.
Wayne Unger: So this is not the first case where immunity, broadly defined, is before the United States Supreme Court. There have been several cases before the Supreme Court that the Supreme Court has decided that establish some level of immunity in different circumstances. For example, in Clinton v Jones, the court decided that there is no constitutional immunity for a president of the United States for unofficial acts applied in the civil context. So civil and unofficial, no immunity. And then you have criminal and kind of a criminal investigation whether a president is immune from a criminal investigation. In short, we've had a couple of criminal subpoenas issued to presidents of the United States, and the court has said, no, you are not above the law. You have to respond to the subpoena, one of them being Nixon v Fitzgerald, another one being the Watergate tapes, where in that case, Nixon said, I'm not going to disclose the tapes. And that worked its way up to the Supreme Court. And the Supreme Court says a broad claim of immunity does not supersede the very specific ask to produce these tapes to further, you know, in the administration of criminal justice.
Hannah McCarthy: So I want to mention you heard Nixon v Fitzgerald. That's different from the Watergate case, right. And importantly, different to and Trump's lawyers make sure to cite Nixon v Fitzgerald specifically. Yes, but not the Watergate case basically. Yeah. Yeah. And uh, the Nixon v Fitzgerald case very specifically uses the term absolute immunity.
Christina Phillips: Remind me what Nixon v Fitzgerald was specifically.
Hannah McCarthy: So what happened is that Nixon fired someone after they testified about, like, a really messy way in which the Air Force was building an airplane. This person testified before Congress and said that it's inefficient and it's a misuse of funds, essentially. So this person sued for wrongful termination damages. And the Supreme Court said, we're sorry, but Nixon is immune because this was an official act, even if it was an official act on the outer perimeter of Nixon's duties as president. Um. So Trump's lawyers are arguing first and foremost in their brief. The Supreme Court told us way back in Marbury versus Madison that they cannot, as in the court, cannot weigh in on the official acts of a president. Okay, Christina, can you read the first mention of Marbury versus Madison in this brief for us?
Christina Phillips: So in Marbury versus Madison, this court held that a president's official acts, quote, can never be examined by the courts, end quote, a doctrine that this court has reaffirmed over two centuries.
Hannah McCarthy: All right. So this brief submitted by Trump's lawyers says this five times, quote, can never be examinable by the courts. I want to say, I think this is important, that this is taken a little out of context. Now, I read Marbury versus Madison. I've read it several times. This quote two things. One is used in reference to an officer of the executive branch, not the president. You could argue that that doesn't have a meaningful difference, because the whole point is that the officer is executing the will of the president. Okay. So yeah. So even though Marbury versus Madison doesn't explicitly say presidential acts can never be examinable by the court, that's the implication, right? But number two, this passage being quoted by Trump's lawyers is immediately followed by a quote, but.
Nick Capodice: Oh, there it is.
Hannah McCarthy: And I'm going to get to that. First of all, though, Rebecca, here we go. Official acts. Right. This is a term that does not exist anywhere in Marbury versus Madison. At no point do they use the phrase official acts. What do we think it means? What do we think the official act of a president is?
Rebecca Lavoie: I'll be honest, it seems like it could be loose, like a thing that you expect a president to do. Sign laws, meet with people, engage in conversations about the budget, give speeches, you know, talk about policy. I mean, a broad variety of things, right? But like, there are supposed to be things that you are not supposed to do as an official act of president, like your campaign for your next presidency is not supposed to be an official act. Right? Like you're raising money is not supposed to be an official act. There are things that we know are not supposed to be, but I'm not sure that's a definition of things that are official acts.
Nick Capodice: Right?
Nick Capodice: The word official acts means related to the office. Right? So these are acts that are in the office of the president. So my question is, is like eating a meal. Part of the office of a president is like sleeping like all these things that you do while you're president. Can they be called official because you're doing them while you are in the office?
Hannah McCarthy: I think that's a great question.
Hannah McCarthy: I don't know the answer to the eating thing.
Nick Capodice: Yeah, I shouldn't have brought that up.
Nick Capodice: But again, it feels like official acts. What is official and what is unofficial that's laid out in the Constitution and the Constitution is pretty barren on what the official acts of the president are.
Christina Phillips: Well, I think that the thing that you brought up with Marbury versus Madison, that the fact that it feels a little out of context because Marbury versus Madison is specifically talking about an official carrying out an act that the president gave them to do, like the president said, you should do this. And if we're thinking about this Trump immunity case in the January 6th, like a lot of the things that are cited in that case are former President Trump telling people to do things or getting on calls with his official staff and people that he works with that he employs. And so that feels like an official act. If it's something that, like he is telling somebody else to do or he's doing with people that are under him in Marbury.
Hannah McCarthy: Versus Madison itself, the opinion references quote duties in which they have a discretion, they being the president, quote, the will of the president. And actually, Nick, if I could have you read just one last paragraph, I think this one lays it out in a pretty straightforward way. I see it as like, this is a baby Supreme Court trying to figure everything out. This is kind of how they're trying to define what a presidential act is.
Nick Capodice: By the Constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion and is accountable only to his country, in his political character and to his own conscience.
Nick Capodice: Oh, wow.
Rebecca Lavoie: It's not getting tighter. It's getting looser.
Hannah McCarthy: The but's coming. The big old. Okay.
Nick Capodice: Yeah. Where's the big old?
Hannah McCarthy: But I'm gonna get to the big old but, but yeah, I thought this was really, really interesting because when I first read this in Marbury versus Madison, I felt like the will of the president, his discretion, his conscience. That's so much wiggle room.
Nick Capodice: Yeah, it's like Magna Carta. It's like the divine right of God has blessed your conscience to understand what to do.
Nick Capodice: Yeah, but.
Hannah McCarthy: I think what's also really important is that the Supreme Court starts to talk about later in Marbury versus Madison, that the president is doing things for the country and not addressing individual rights. And once we start thinking about the rights of the people, things get a little more complicated. And in actual fact, John Marshall complicates it. That's part of his.
Rebecca Lavoie: But I love the optimism of 18th and early 19th century elected people and people on the Supreme Court. Like, you could not write something like this or think something like this. If you ever suspected that someone would be elected to the presidency, that would take this idea and use it just to their complete advantage right there, assuming that everybody who's going to be elected to this office ever is going to be a good person and completely live by these ideals. And that's really optimistic. And I kind of love that.
Hannah McCarthy: I think that's there. I mean, when I was reading Nixon v Fitzgerald, the court is like, you know, it seems like in granting absolute immunity for civil cases that there's no recourse when it comes to the president doing something that someone feels like is an injury. But of course, there's lots of recourse. There's impeachment. And then one of the things they note, they essentially say, like, the president has a duty to the people and wouldn't want to embarrass him.
Rebecca Lavoie: Never, ever, ever. No, no president would ever, like, step over any lines of any kind. Right. Wow.
Christina Phillips: There's a whole lot of like, you know, assuming that feelings matter in this situation and I.
Rebecca Lavoie: And dignity. Yeah. And, you know, decorum and all the things that's like, it's like everybody's going to be George Washington. Everybody's going to be Thomas Jefferson. It's always going to be like sending a message by horseback. So the message has to be really important, like the assumptions of just the times are just really astonishing to read now.
Hannah McCarthy: Yeah. When they later refine Marbury versus Madison political question doctrine in Baker v Carr in 1962, the sixth thing under the political question doctrine, like what makes it something that the court can't mess with, is if multiple branches disagreeing on something would cause great embarrassment. Wow, we can't do anything about it. And it's like, what does that mean? How do you define great embarrassment?
Rebecca Lavoie: It means that, like England looks at us and goes.
Nick Capodice: We told you so.
Hannah McCarthy: Okay, so I keep promising that I'm going to get to that thing that big. But in Marbury versus Madison, and I promise I am almost there. But before we get there, we need to take a quick break. And one thing I ask of you, fair listener, if you have ever heard the show and have learned a little something, like maybe the things hidden in famous Supreme Court decisions that you never knew were there, consider making a donation to Civics 101 to support our work. This show costs a lot to make, and it's made at a public radio station where resources are scarce and good journalism matters. Above all else, you can pitch in to keep Civics 101 coming your way at civics101podcast.org or by clicking the link in your show notes.
Hannah McCarthy: We'll be right back.
Hannah McCarthy: Welcome back to Civics 101. I'm Hannah McCarthy, and today on this special Roundtable Hands Plains edition of the show, we are digging into what Marbury versus Madison has to do with the Supreme Court case happening in two days, involving former President Donald Trump, and whether he has immunity around acts leading up to the January 6th riot at the Capitol. Before the break, we were talking about what makes an official act. I should just say. I mean, I could tell you all of the details of it, but Trump's lawyers go through every single one of his criminal allegations, and they basically say, all of this is under the umbrella of official acts. Like you were saying, Christina. So like he tweeted about election fraud. That was a paramount federal concern had to be addressed by government officials, asked the Attorney general and the Department of Justice to investigate he suspected election crimes. That was within his rights and duties. Right. He told state officials to exercise their official responsibilities given the suspected fraud. What could be wrong with that? He told the vice president, the vice president's office and Congress to act according to their official duties in the face of widespread fraud, and at one point, the brief mentions the fact that Trump had lots of data, lots of information pertaining to this widespread fraud. So it was grounded. It was based in something. The suspicion. Then Trump spurred people to come up with alternate electors to help the vice president in his official duties. So all official duties, official duties, official duties.
Rebecca Lavoie: Not about reelection, about executing the job right.
Hannah McCarthy: Especially in the face of crime. Got it. So the brief also says that the court has reaffirmed the political question doctrine as late as Nixon v Fitzgerald. And the logic is that the president needs to focus on his job without being bothered by legal threats. Quote, because of the singular importance of the president's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government, unquote. But importantly, this is about, again, a quote here, merely private suits for damages based on a president's official acts, private suits, civil cases.
Rebecca Lavoie: I'm just going to say a lot of the language in this. It sounds a lot like the qualified immunity language around police officers, right, that they can't be worried about what will happen while they're performing the duties of their job as a police officer. It's the same language.
Hannah McCarthy: Yeah. Wayne actually talked about qualified immunity. I just didn't have space for it because this is a long one. But exactly right. Qualified immunity, that's the whole idea. And so Trump's lawyers, when they're talking about this criminal stuff, they're like, well, criminal suits are even more dire and really, really, really should not be allowed to mess with the president's official acts. We especially shouldn't allow a president to be taken up on criminal charges. And this brief says Justice Brett Kavanaugh agrees with US.
Wayne Unger: Justice Brett Kavanaugh when he was on the D.C. Circuit Court of Appeals. So then Judge Kavanaugh, he wrote a law review article for the Minnesota Law Review that argued for a deferral. What he meant by that is civil cases and criminal cases against the president of the United States. A sitting president of the United States should be deferred until after that president leaves office because of the demands of the job. It would interfere with the person who has been elected the president and fulfilling the duties under article two of the United States Constitution. And there's some, again, there's some reasonableness and validity to that. But the Trump brief kind of goes down this route where it implies that Justice Kavanaugh, then Judge Kavanaugh, supported absolute immunity. That's not true, because he says in his article, Brett Kavanaugh, that criminal prosecution should be deferred until after a president leaves office, which is based on the fundamental premise that a president can be held criminally liable. Because if we think about it, why would he make an argument that you should defer criminal prosecution if he believed that the president is immune from criminal liability? Right. You wouldn't make that argument.
Hannah McCarthy: I should clarify that Professor Wayne Ungar did write an article. I can't remember the exact title of it, but it was essentially, if my law student submitted this brief, I would give them enough. Oh, wow. If you look at the actual legal, historical, constitutional, and first person account evidence. The question before the court is not actually does the political question doctrine apply here? The question is right, like all Supreme Court cases have like usually one. Big question, maybe a couple of bullet points after that. But the question with this case is, quote, does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office? And if so, to what extent? But of course, to answer that, especially given the brief that Trump's lawyers submitted the political question doctrine, they say it's a major factor. So it's likely that the court can't ignore that will have to wrestle with that. Right. Because the lawyers are saying that the Supreme Court already established that it cannot review the official actions of a president.
Wayne Unger: Well, Marbury versus Madison, as he quotes and as we highlighted, there is language in that case that says there are certain acts by the president of the United States that are not reviewable by the court, but where he misses is the very next sentence in the Marbury versus Madison opinion. And that very next sentence says, but but there are some circumstances in which we can review. So Trump's attorneys made it appear, or Trump's brief makes it appear, that it's a hard, bright line rule that article three courts cannot review presidential actions, when in fact that is just fundamentally wrong because article three courts review presidential actions all of the time.
Nick Capodice: What?
Hannah McCarthy: That's the big but.
Nick Capodice: But what are they, though?
Wayne Unger: What are they? Do you know the things like what are the what are the instances in which the court can do it?
Hannah McCarthy: Well, the example that he gives is the Biden case. But regularly the court is like, can the president do that?
Nick Capodice: Yeah. Let me look.
Hannah McCarthy: Let me look at the law that they were abiding by. Right. And the big but in Marbury versus Madison.
Rebecca Lavoie: Yeah. So we're waiting for remember.
Hannah McCarthy: How I told you that there was a little bit of cherry picking in terms of can never be examinable by the courts? Yes. So Marshall is talking about a case in which an officer does something in his role in the executive branch, and someone takes issue with it. Now, Marshall says that this officer who did whatever someone takes issue with as his duties were prescribed by that act, this is the act under which he's acting. Right. So in the case of this, they're talking about Congress establishes the Department of Foreign Affairs. There's a Department of Foreign Affairs officer. They do something. Someone takes issue with what they do. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. He is an executive officer. He is the mere organ by whom that will is communicated. The acts of such an officer as an officer can never be examinable by the courts. But when the legislature proceeds to impose on that officer other duties, when he is directed peremptorily to perform certain acts, when the rights of individuals are dependent on the performance of those acts, he is so far the officer of the law, is amenable to the laws for his conduct, and cannot, at his discretion, sport away the vested rights of others.
Rebecca Lavoie: Oh.
Hannah McCarthy: So that's an important but.
Rebecca Lavoie: That's a big but.
Hannah McCarthy: Yeah, because the president can do a lot of things. But there are also a lot of laws. And someone within the executive branch is acting according to the will of the president. Let's not question that. However, those laws often pertain to the proper execution of an American person's rights. Yes, if you do not facilitate that properly, if you in fact deprive someone of their rights in what you're doing, that is a different story altogether. So that's what's so important about the but.
Rebecca Lavoie: So this is where the rights of the voter come into play, right? My rights to have my vote be counted properly. That's what they're talking about. If this section applies in this case, that's what's being discussed. Right?
Hannah McCarthy: I would say if any of the justices bring up this section, that would be the implication, right, that we are talking about the rights of the voters. And I think that Trump and Trump's lawyers would say I was protecting the right of the voters. There was fraud. I was making sure that there wasn't fraud in this sacred space of the election. Or someone could say, well, actually, you were depriving voters of their will of their right. Right. Let's think about what the court might say. Right.
Nick Capodice: I got predictions.
Hannah McCarthy: You have predictions.
Nick Capodice: I got predictions til Sunday.
Nick Capodice: What do you got?
Nick Capodice: I think it's kind of bonkers that we're all sitting in a room and talking about Marbury versus Madison. As if this is the gold. This is the gold jewel that we must all cling to for the rest of our lives.
Rebecca Lavoie: 1803 man.
Nick Capodice: 1803 yeah, yeah, we're talking about Twitter, and we're talking about rigged elections, and we're talking about all this stuff that John Marshall could never have considered. That's. It's just one little thing I want to throw out there. What I think the court is going to do is what a lot of administrations have done, or what Congress has done in the past, which is to say, okay, maybe he's not the president now, because if he were the president, you know, he would be immune. It's when they're out that we shouldn't we can investigate it like Brett Kavanaugh said. But there's an election coming up, and I feel like the court will say, not now. We can't talk about it because there's an election coming.
Rebecca Lavoie: Because he could be the president.
Nick Capodice: Because he could be the president again soon, just like the Republican Party did for Supreme Court justices. You know, an election either just happened or is going to happen real soon or isn't going to happen soon enough.
Rebecca Lavoie: But it's always about to happen...
Wayne Unger: Yeah it's like Christmas. Yeah. So I think that the Supreme Court is going to sort of punt it and to say, like, we can only sort of look at this when the election is over, because right now it could kind of maybe still be part of that office.
Christina Phillips: Well, what I think is interesting about that is that the decision to take up this case in the first place is already kind of doing that, because the Supreme Court, they could have let the D.C. circuit court decision stand, which is applied specifically to Trump and this this case with Trump. And they could have still taken this issue up later, but then also taking up the decision now, as opposed to in December when Jack Smith originally asked them to if they take it up in April, they make a decision maybe in May. There's still three months on that seven month preparation period left for both sides to prepare their case, which means that the case would go before a jury like the earliest. Probably like September, but most likely October November. So they've already sort of kind of done that. Like no matter what, they end up deciding, just the fact that they took it up in the first place. It's already sort of made it kind of irrelevant in terms of Trump in a lot of ways, because they could still say, I mean, I guess if he if he's not reelected and they make a decision like saying that no, you're not immune, that would allow this case to go forward and then have precedent for the rest of history. But if he gets reelected, he still has the power, even if he was not immune from prosecution to now, as the head of the Justice Department, essentially overseeing it be like, don't continue with this.
Hannah McCarthy: Rebecca, do you have any predictions?
Rebecca Lavoie: I don't, you know why? Why? Because this court many times has not surprised me and in some cases has very much surprised me. So I am not going to throw a take into the mix.
Nick Capodice: Okay.
Hannah McCarthy: So if we look at this in terms of political question doctrine and immunity charges, right. Let's say that the court does not agree with Trump's lawyers. Marbury versus Madison claim. Let's say they decide that everything you're listing here that you say is an official duty isn't one, not even an outer perimeter duty. That would mean that they're saying that they can weigh in. That's just one step, and they might do that or they might not. They could also say, you're right, these are official duties. But we have only said that the president is immune in civil liability cases related to official duties. We haven't actually made a hard and fast decision about criminal liability. And, you know, moving on to the immunity question, we have to ultimately, no matter what, unless they remand, the court probably will say something about immunity. And not just that absolute immunity.
Wayne Unger: There are reasonable arguments that the president should be entitled to some level of immunity, because there are decisions that need to be made by the president, which are very tough, and we can acknowledge and respect those. But I think fundamentally to say that the president of the United States is absolutely immune from criminal prosecution is just wrong and flawed in so many different ways. Also, the Supreme Court's opinions related to immunity, both civil immunity as well as whether they're immune from answering criminal subpoenas, all indicate that the president is not absolutely immune in the criminal justice system.
Hannah McCarthy: A little bit to your point, Nick. Right. You know, what kind of ruling could the court issue? It doesn't have to be broad. You know, Rebecca, you brought up Bush v Gore earlier.
Nick Capodice: Oh, it could be super duper wuper narrow. Right? It only has to do with this one day.
Wayne Unger: Bush v Gore, of course, was a very narrow decision where the court expressly said this applies here and here only, and it's possible for the Supreme Court to do the same with the immunity case. It's possible for the Supreme Court to say, we're going to essentially find immunity with Donald Trump and his actions related to January 6th, but only now because there could be a circumstance down the road where, you know, we don't want the president to have immunity.
Hannah McCarthy: The other thing to consider is this is the chance for this Supreme Court, those nine justices to rule big on a big thing, right? The criminal prosecution of a former president for things he did while he was still president. They can make it small if they want, or they could make it big.
Wayne Unger: But the other immunity cases that have come before the Supreme Court, presidential immunity, for example, Clinton v Jones, Nixon v Fitzgerald, the court has had opportunities to narrowly rule in a case, but instead they decided that they're going to set a legal standard that still applies today. It is somewhat of a broader standard or a broader ruling. In this particular case, I would think. And this is, again, a suspicion, and the court could chart its own path here and disagree with me. But I would think that the court would say, no, we should probably set a standard that is applicable beyond this particular circumstance.
Hannah McCarthy: So I think that's one of the reasons that this is really important to focus on. So like kind of regardless of what happens with Trump, the Supreme Court is going to decide about criminal immunity or not. You know, like Wayne said. But like you got this right in front of you. This is a career-defining moment. I'm curious to see what nine human beings decide to do.
Rebecca Lavoie: Let's look at it this way. This court has made some very big swings in the last couple of years, so maybe we shouldn't be surprised if they make a really big swing this time, right?
Hannah McCarthy: That's all I've got. That's what's going on. I cannot wait to see what the justices have to say about the political question doctrine. I know it sounds silly because this is also a question about absolute immunity. Right? But when you have the chance to affirm what, like is a presidential act in a new way, you know, refine what a 221 year old doctrine actually means? And, you know, when it was first established, it was at this time when the court was trying to tread lightly in politics and preserve the rule of law and the separation of powers. But today's court is just as wary of being accused of being political. Right. So I just think that this is something fascinating to watch.
Hannah McCarthy: This episode was produced by me, Hannah McCarthy, and Rebecca Lavoie. Nick Capodice is my co-host. Christina Phillips is our senior producer. If you like Civics 101. If you want more Civics 101, you can check it all out at our website civics101podcast.org. While you're there, you can also subscribe to our newsletter. It's where we put all of the cool stuff that does not end up in the episodes, and I swear it is not annoying and we don't try to sell you anything. Music. In this episode by P.W. io, Victor Lundberg, twin Musicom, arc du Soleil, Chris Zabriskie, Arthur Benson, Adeline Paik, and Helliniko Civics 101 is a production of NPR, New Hampshire Public Radio.
Nick Capodice: Do you want your theme song to be kind of like butt rock, or do you want it to be like a girl kind of explaining stuff?
Hannah McCarthy: You've been saying butt rock a lot lately.
Rebecca Lavoie: I want it to be jaunty. I think it should be like jaunty. Like.
Nick Capodice: Like, yeah.
Hannah McCarthy: I think jaunty. More so folky.
Nick Capodice: But it's just like. It's like Lynyrd Skynyrd. Yeah, yeah, it's two T's. It's like, I don't know, it's.
Rebecca Lavoie: Like uncle Rock.
Nick Capodice: Uncle Rock?
Hannah McCarthy: Sure. You mean like hair metal.
Nick Capodice: Or kind of like.
Nick Capodice: Yeah, like like poison.
Christina Phillips: Yeah. You know, like I just spent all day working on my car in my garage, and.
Nick Capodice: Now Rock is shaking your head back and forth kind of thing.
Rebecca Lavoie: I think it should be more like the women from, um, the magic Garden and the chuckle patch. Oh, I love it.
Nick Capodice: Like that's much better. Folky. Yeah.
Rebecca Lavoie: Hansplain.
Nick Capodice: There it is. There it is.