“Trump will spend the rest of his life in jail”

Yeah. Trump will spend the rest of his life in jail. As my my my position, and I’m, my my story I’m sticking to it is one way or the other, It may it may take a while just as it’s already taken a while. He’s gonna end up spending the rest of his life in jail.

Hello everybody and welcome back to our new show George Conway explains it all. To Sarah. You guys asked. You said you wanted more of this? So we’re gonna deliver.

We’re gonna make this a regular thing. And just to start, okay? I I George, you were there yesterday. Right? You went.

We’re both wearing hats today because we’re doing this.

Did you guys do hat?

Make attorneys get attorneys.

I just wanna make sure everybody sees the hat.

Okay. So listen. So you were you were at the trial yesterday. And I I I wanna hear like how you got into the room. But before you do that, I need you to explain to me because I had to have somebody else explain this to me.

This immunity case is part of the Jack Smith

Correct.

January sixth case.

Correct.

And they had a trial in front of a single judge.

No trial.

No. No. No. Okay. Wait.

Explain to me. Yeah. Well, how we got to the court of appeals.

Okay. Here here’s here’s how it goes. In the federal system and in state systems, I mean, basically, there is a trial court that where people get indicted and they go to trial. If they ask for a jury or if the government asks for a jury, they get a jury. And it’s presided over by a single judge.

And then there’s a judgment of conviction. If there’s a judgment of conviction, then that gets appealed to an appellate court. In the federal system, you you go to the United States District Court for the District of Columbia. And that’s where Judge Chutkins sits. And the trial in his case, the election interference case brought by Jack Smith is scheduled to begin on March fourth.

I guess that would be the day that jury selection would begin, but right now it stayed and the reason why it stayed is because Trump made a motion to dismiss on grounds that he is immune from prosecution since the acts that he committed he claims, were official acts and he also claims that the the president of the United states cannot be prosecuted even after he leaves office for official acts, which got him into a little trouble yesterday. So he made that motion to dismiss along with another argument based on something called the impeachment judgment clause. He lost before Judge Chutkin who wrote a very nice sixty or seventy. I don’t know how long. It was a long opinion.

And then he appealed that order and the court obliged by expediting the case just so that oral arguments were held yesterday.

And can I just ask, was this the one that Jack Smith wanted to do the Supreme Court to take up to make a really fast ruling? And they declined, right? And they kicked it back to this court of appeal.

Right. There there is a procedure that’s only used very rarely, whereby if a case has been appealed to a united states court of appeals. Any party to that appeal, whether or not they’re challenging the district court judgment or not, can file a petition for a writ of certiorari before judgment telling the Supreme Court this case is already on appeal, but for various reasons because it’s usually because it’s important to the country, you need to resolve it now and just basically take the case out of the court of appeals and put it on your docket and hear it and decide it. The court did not do so here, and I think people mistakenly their first reaction, and I really went out on the airways to try to push against it. I thought, Oh, no.

It’s a disaster. This case, Jack Smith is gonna lose. It’s terrible. The court’s not taking him seriously, and And this case is never gonna get tried. And and the answer was to that is poppycock.

There’s that word again. Because he bleeps me when I used the other word I used. And so, it’s a show for children. Does it show for children? Five year olds who wanna understand the law?

I get it. I get it. So, basically, what the reason why they they probably probably the reason why they didn’t take it is because they saw that, oh, the DC Circuit, the US Court of Appeals case, the court that heard the case yesterday is moving really, really fast. Let’s see what they do.

Alright. So let’s let’s bring us to yesterday, which is so you’re you’re you’re in the DC Circuit Court, and to hear these oral arguments. First of all, how’d you get in? Is it like waiting to get like, into a grateful dead show. Do you have to camp out the night before?

In the in the courts court of appeals, they they had, you know, they used a small courtroom yesterday. It wasn’t that big as far as courtrooms ago. There’s a much, much bigger courtroom there for ceremonial and and and ohm bonk events. And there were two lines on the fifth floor where the courtroom was. And I at that at that point, it became clear that not everybody was gonna get in because it’s pretty small.

And they only took ten journalists in the press line. I was in the unwashed line, which was much longer. And I was like fifteenth or so. And they live in about twenty. So it was like if I had gotten the press credential, I would have been sent to an overflow room where they have a close circuit TV feed I probably would have been able to hear things and see things a little bit better, frankly, in, in the, on, on the, on the TV.

And but it was much more fun to be in the courtroom, even though I only got to see the back of the or the orange guy’s head.

Okay. So he couldn’t see you. But you know what though? I’m sure he felt your presence.

Well, he would if he I was trying to do my best, you know, with using, you know, force lightning, but, it didn’t, it didn’t. No. I mean, he would, yeah, he he would not have been happy to see me because he now knows that I was the guy who found Jean Carroll a lawyer among other things. So he was very upset about that.

I think he knows you on several fronts. Okay. So we So so I read your Atlantic Police, but why don’t you just give us a rundown of, like, what was the main argument that Trump’s lawyer was trying to make to these judges about why he deserves presidential immunity?

Yeah. I mean, there there were two arguments that he was making. One was that the president is as a matter of the separation of powers and the inherent nature of the constitution and structural guarantees under article two to protect the president’s ability to function. There is an absolute presidential immunity from criminal prosecution. And the legal authority they cite for that is a long line of cases in the civil realm.

And those civil cases hold that, well, the president is unique among public officials in that. The things that he does affect the entire country frequently, if not the entire world. And if we were to hold him civily liable, for doing things that may be incorrect or illegal or, you know, for any kind of screwup that he might make. He could be subjected to these massive claims for damages from everyone for everyone in the United States or everyone in the world and then be a huge class action, and it would be terrible because the president’s gonna always be thinking not about what he whether he’s doing the best thing for the country, he’s gonna consider well. You know, I could be bankrupted here.

And so essentially the Supreme Court on that basis held that there is an absolute civil immunity for the president, for damages, liability, for actions taken by the president, quote, within the outer perimeter of his official responsibility closely. And it’s very, very broad. It’s basically anything the president is supposed to do and it’s connected to that that should be covered. The second argument that he makes, is a much, much weaker argument, not that the first argument was And the next argument he makes is based upon a provision in Article one, a section three, a that deals with impeachment and the judgments that Congress can issue in impeachments. And the second part of the impeachment judgment clause is the part that Trump and his lawyers were relying on.

And that clause basically says in in words of very simple language. That if somebody is tried and convicted in the Senate and removed, They can still be prosecuted in the ordinary course in the courts of law. They can they can be they can be indicted and sent to jail. After the impeachment trial. But anyway, what happened yesterday is he they they both they brought both of those arguments up.

The argument that he is absolutely immune from of a liability. And then the argument that the impeachment judgment clause by negative inference, prohibits him from being indicted because he was charged and not convicted in the Senate. And what happened was Those two arguments are in great tension with each other. I mean, there were two things that we we I think we all saw our many people here following along and you could read about it in my Atlantic piece. How an old friend of mine actually judge judge Florence Pan who I met thirty years ago.

She was a summer associate at my old law firm. I’m a very smart woman. Just unbelievable Bulwark. She It

was clear from your piece you really liked this woman. God, she was

good. It’s fabulous. And if Biden puts her on the Supreme Court, man, now that would be like, you know, he he would he would be doing himself a big favor. And I I I there’s a good chance that might happen. I don’t know.

Yeah. Okay. So explain to me what you heard yesterday. Here’s what happened.

Dee John Sauer, who is Trump’s lawyer. He had a very, very gravely voice. He’s from Missouri, but he talked like a New Yorker, otherwise. He’s a former, he’s a graduate of Harvard Law School, a former clerk to judge Ludwig, a former clerk to Justice Scalia, And he was appointed to be solicitor general of the state of Missouri by one then attorney general Josh Holly. So, you know, he’s he’s he’s he’s he’s got a red hat of a different sort.

And, he

The bad kind.

The bad kind. The bad red hats. Yes. And so his he he said I’m gonna go to the merits now and he said, we are be opening a pan you’d be opening a Pandora’s box, he said, if you allow President Trump to be prosecuted here. And he gave a couple of examples.

And this is what we call in the law the parade of horrible. When you’re just saying, oh, if you rule against my client, then look at the bad things of what happened and the bad things of what happened, he said, or is that For example, George w Bush could be prosecuted. It’s the lead part of the statute of limitations. He could be prosecuted for having lied to Congress to get us into war. Iraq Obama could be prosecuted for, ordering drone strikes that killed American citizens abroad.

And at that point, judge Pan just cut him off right there. He didn’t even get a chance to ask you to answer, to finish his argument at that point. He said, well, let me explore the implications of your argument. And she posed a couple of high three hypotheticals. One is What if the president, sold nuclear secrets to a foreign power?

What if the president sold pardons and personally profited? And the third one, which is the one that got the most attention is What if the president ordered seal team six to assassinate a political rival?

Could a president order seal team six to assassinate a political rival. That’s an official act in order to seal team six.

Is it your contention that the president is absolutely immune from for for for for those actions. And under his absolute immunity argument, the answer is yes, because I mean, you could he might try to that he could fence about whether these were official acts, but issuing a pardon is an official act. Talking to foreign countries, is an official act. I mean, you know, I mean, selling is a little goes below beyond that, but but he’s in the normal course of you know, broad reading of his official responsibility. He’s entitled to give information to foreign leaders.

The third you know, he’s entitled or he’s the commander in chief of the military. He can order seal team six as president Obama did to take out Ossama bin Laden. You know, and the question is, well, that’s, you know, you you wish you an order and this is the point that judge Pan made. You wish you an order President issues in order to seal team six. That’s that’s official conduct regardless of who he’s sending them to go after.

So the response that John Sauer gave on behalf of Trump is was was wishy washy. He didn’t want to say yes. There are those actions are all immune because that’s just an incredibly stark position. And at the same time, He was also taking this screwball position that I mentioned before about the impeachment judgment clause that says, which actually does say, actually, his position was that negative implication, but the impeachment judgment clause actually does say that people can be prosecuted after they’re thrown out of office. And so he took that part of what the impeachment judgment clause said, which actually is contradictory to the entire notion of presidential immunity because well, if presidents were immune, you wouldn’t say he could, a president or any public, a public official could be prosecuted after being impeached and convicted.

At least you would have said except for the president. If you thought the presidents were immune from, criminal prosecution for their official acts. So She starts drilling in on the tension between there. She’s trying to get him to say, you’re saying this is absolutely this is absolutely immune. This is Judge Pan.

And he’s fighting that and saying, well, in the seal team’s six situation, the president will be undoubtedly He undoubtedly he’d be impeached and convicted. He he would have to be and would speedily be, you know, impeached and convicted before the criminal prosecution. Bergo, he could be then prosecuted.

I don’t know if you met the Senate, this is Republican senate.

Oh, I I I I will set that aside. We’ll set that aside. And and and then and so Pan kept saying, okay. We’ll leave aside suppose that he is not impeached. And removed.

And there are a lot of reasons why presence are not removed or impeached or removed. It could be one. The politics don’t allow it, which is what happened twice with Donald Trump. A second could be that, the evidence doesn’t come out until after the president leaves office in the ordinary course. A third reason could be, the president resigns before he is impeached and convicted like, a la, Richard Nixon.

So let’s say the present I mean, so the the the the hypotheticals here, and I think they did kind of get into this later. In the argument. I mean, the president could decide I’m, you know, on on on on Trump’s argument. Taking at face value. If if a president decided to order seal team six to kill, Chuck Schumer and and and Akean Jeffrey is president Trump does this, and and all the Democratic members of the Congress or whoever whoever he doesn’t like George Conway, Sarah Longwell, whoever.

We all we’re all, you know, it’s the night of the long night. I suppose he does that. And then he resigns before anybody has a chance to impeach it, which couldn’t happen anyway since he’s killed half of the converse. Then There would be no basis to prosecute him because he’d be immune and the exception under the impeachment judgment clause that Trump allows would not apply. So it’s not it’s it’s completely insane.

But anyway, judge, what judge Pam did quite brilliantly was trying in trying to pin him down on he find she finally got a clear answer after like several go rounds. And this is one thing you never do in in in in in in in an impeller cord. When you’re asked the question and you have to make a concession, don’t fight it. You say, yes, your honor. That is correct.

Right? When they’re when they’re asking you yes or no questions. You don’t say it depends or no, but you you just say, you know, you say yes, but I wouldn’t. You you separately make the point that you wanna make. It’s just very annoying to the courts and and and you just end up wasting time doing that.

But anyway, what she pointed out was, okay, your position that he’s absolutely immune resumes that he’s absolutely making. He can’t be prosecuted for anything. On the other hand, you’re admitting that he can be prosecuted under the impeachment judgment clause. And and and there was an additional tension, which is The reason that he kept saying, Sauer kept saying that we need absolute presidential immunity was because of the fear of political prosecutions, which of course is ironic because the one guy who actually wants to prosecute people for their political activities is Donald Trump, but let’s set that aside. And so to to have pure pureness in the criminal justice realm as applies to present.

You can’t prosecute them because you just, you know, you can’t have that. Then he’s arguing but you can prosecute the president. If Congress says, and Congress is kind of a political body last I checked, you can prosecute the president if Congress says so. I mean, the two positions cannot be reconciled and judge Pan brought that out and it was just when you see somebody taken apart like that in court, you know they are going to lose. And that’s exactly what happened.

He was just sour was completely dismantled, and he was trying to fight it but there was just the the inexorable logic. And and judge Pam just kept drilling in on it. I mean, it just it just became clear that his position made absolutely no sense. And and the ultimate and what she was doing there was highlighting the complete tension between his one argument, both arguments were weak arguments and when you conflate weak arguments in a in a court of appeals, or the Supreme Court you just get you just get destroyed. And that’s exactly what happened here.

This one argument says, we need absolute immunity. There’s all argument says, there is no absolute immunity. And and the two don’t mix, but he was conflating them. And in so doing, he said, you know, he set a trap for himself and judge Pan just with with great intellectual, nimble list, just just picked him apart.

Yeah. You said this guy’s like a really smart lawyer. Did he not, I mean, you, you know, I I I

I he’s he’s a very articulate lawyer I don’t particularly like his style, although, I mean, I I well, I shouldn’t talk because I talk fast. His way of trying to He he tried to steamroll the judges into, but by basically just the wall of words you know, he he wouldn’t answer Judge Pan’s questions directly, and then he’d start mumbling on about Marbury against Madison and this, that, and the other thing. And, you know, I mean, it it it it it wasn’t it wasn’t that effective. I think the real problem is that he had bad arguments and I think his choice of arguments mean, look, he was gonna lose this case anyway. I’m I’m not I don’t want he is a smart guy, but sometimes when you are litigators, very smart litigators sometimes get tunnel vision.

And it’s like you don’t you don’t realize the flaws in your position and sometimes you you end up having leaving an exposed flank. And I think that’s partly what happened here because they had this terrible argument. I don’t know who cooked it up. That they they they presented in an initial court. Maybe it was sour himself, maybe it was somebody else.

And, they became so enamored of it that they wouldn’t let it go.

Alright. Just before we wrap up here, just tell me what’s gonna happen next? What’s the next move here? Alright.

What’s gonna happen next in this case is that you’re going to get, I think, a really solid opinion affirming Judge Chuck in. And that rule, I think then forced Trump to try to go to the BunkDC Circle, which I think will be a failure. An an immediate or immediately go to the Supreme Court, and then the the question will be to the Supreme Court. Are you gonna take this one too? Like you took the Colorado case I think in this situation, there is a decent chance that people have been I think people were underestimating but I think now I think people are starting to see this is this is how it could play out where the court says, oh, that’s a good opinion by the the the court of appeals and, Let’s just let it stand.

Circ denied. And if that happens, this case is going to trial on March March fourth.

And which by the way is the day before Super Tuesday Just so people know the calendar. It’s the day before No.

No. It’s like we we what I want somebody to do, I mean, just security, you know, them, they they have have this master calendar that they revise every day that you can pull up on your screen. I want one that goes straight into my calendar on on my iPhone.

Oh, we’ve got that. Well, I’ll have I’ll have the guys. I’ll have the guys, little job.

Yeah. You could, I think you could charge for that. You know, you can charge for that. Yeah. You know, I I I have the money.

You’re gonna need the money when when when when when when when you have the gall going to exile. Yeah. You know, to avoid being sent to Guantanamo, by seal team six if if they let us live.

Yeah. I hear Malta’s nice.

Okay. I met a diplomat from Malta. A few months ago. I hope

then they’re gonna let us in. You’re gonna get me in, right?

Yeah. He’s a very nice guy. Yeah. Malta is multi will be great. You understand Patton where they go.

He’s used as he’s going around and he’s hitting Malta.

Last question, and then we gotta get out of here. If the Supreme Court were to give him immunity. Let’s just say it’s just say you’re you you are I’m sure this could never happen. Let’s say you’re incorrect. Supreme Court gives him immunity.

Is he immune in all the cases? That are currently ninety one and diagnosed that are out there?

He would be immune in this case before Judge Chuckkin. He would be immune in the Georgia case. He would not be immune in the I don’t think he would be immune in the, hush money case in New York. I’m sure he wouldn’t be immune. And what’s the other criminal case?

There’s so many

The documents.

The document case, I don’t think he would be immune for the obstruction of justice that occurred because he was no longer president there. He might be immune from he might be immune from having taken the documents with him because he was president when he got on the plane. There there’d be there’d be he he he could be prosecuted for the obstruction of justice. Because that happened after he was, in office. Yeah.

Trump will spend the rest of his life in jail. As my my my position, I’m my my story I’m singing to it as one way or the other. It may it may take a while just as it’s already taken a while. He’s gonna end up spending the rest of his life in jail.

George Conway. Thank you for explaining it all to Sarah. This is great. We’re gonna do it again next week. Thanks to all of you.

We’ll see you next time. Okay.

Bye.

Don’t take it longer. Don’t do it.