Law Dork Video: On Trump's immunity claim, the history (or lack thereof), and its consequences

Lawyers Kathleen Hartnett and Kristy Parker and historian Holly Brewer discuss the upcoming Trump v. U.S. arguments and the briefs that they submitted in the case.

On Thursday, the U.S. Supreme Court will be hearing arguments in Donald Trump v. United States, where lawyers for the former president are arguing that all former presidents are forever immune from criminal prosecution for any official acts done in office.

On April 15, I talked with some of the experts behind two important amici curiae, or friends of the court, briefs submitted by nonparties about the case and its potential consequences.

Kathleen Harnett, a partner at Cooley, and Kristy Parker, special counsel at Protect Democracy, are lawyers leading an amici curiae brief submitted on behalf of retired and former military officials that raises stark questions about the consequences in the military of Trump’s immunity-for-life claim. Holly Brewer, an associate professor at the University of Maryland, is the historian leading an amici curiae brief submitted on behalf of scholars of the founding era that details how unfathomable Trump’s argument would be to the people around during George Washington’s presidency.

The case itself comes to the Supreme Court out of the federal charges that Trump is facing in Washington, D.C. in connection with his actions surrounding Jan. 6, 2021.

Trump’s claim has already been rejected by every judge to consider it in the district court and the U.S. Court of Appeals for the D.C. Circuit. Although Special Counsel Jack Smith had asked the justices to hear the case back in December 2023, skipping over the D.C. Circuit, the Supreme Court only agreed to hear it after the appeals court ruled against Trump in February 2024.

“Former President Trump’s alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government,” the appeals court held.

The Supreme Court agreed to hear Trump’s appeal of that decision, keeping his trial on those charges on hold in the meantime, and will hear arguments on the immunity claim on April 25.

I was so glad to be able to talk with Brewer, Hartnett, and Parker about this important case, and I am even more excited to share this discussion with everyone at Law Dork.

The following interview has been condensed and edited for clarity.

LAW DORK: Thank you so much for joining us this afternoon to talk about the upcoming arguments in Trump versus United States. This is the second Law Dork Video, and we have the fortune of having with us people involved in two of the key amicus briefs submitted in the case. Kathleen Hartnett, a partner at Cooley, who worked on the retire generals brief along with Kristy Parker, the special counsel at Protect Democracy. The third member of our panel today is Holly Brewer from the University of Maryland, who was involved with the brief brought by the founding scholars of American history.

I've obviously been spending a lot of time on this case as it's been going through, since Trump started making this claim that he has absolute immunity from criminal prosecution for official acts for life. And that is basically exactly what the question presented is to the Supreme Court when it hears arguments on April 25. Going into this, I think my first question is for you, Kristy, sort of the the scene-setter, how we got here. I know that you all at Protect Democracy were involved in in trying to keep the criminal case going while the Supreme Court took it. But can you sort of set the stage for how this case evolved, how we ended up having this side argument about criminal immunity before Trump is even going to trial?

KRISTY PARKER: So I as I think we all know, former President Trump was indicted last summer, a couple of times, by federal grand juries. The first was in a case involving national defense information, classified records in Florida, and the second one was indicted in Washington, DC, arising out of the insurrection that took place on January 6. And the charges in that case are a fairly wide ranging set of conspiracy charges around that event, which include a conspiracy to defraud the United States, a conspiracy to obstruct justice and a civil rights conspiracy to interfere with people's rights to vote. And long story short, it includes a lot of alleged agreement between Donald Trump and unindicted co-conspirators and others to secure false electoral certificates, to cajole federal officials into setting setting aside lawful election results, to pressuring the Vice President to disregard his duties, to co-opting the Justice Department to try to open fraud cases that that were unwarranted, and also to direct a mob to the Capitol and then basically leveraging that mob in order to continue his efforts to try to get the Vice President to not certify the election.

After the case was indicted, Trump filed a number of motions to dismiss and the central one of which we're here to talk about asserting that the president enjoys immunity in a criminal context, much like the president has been found to have in the civil context, emanating from the United States versus Nixon case.

And, just to cut to the heart of it, that's an unprecedented claim. It has never been thought that a president enjoyed immunity from criminal prosecution as opposed to civil damages liability. There's nothing — the Constitution does not speak to that. And frankly, all of our leaders, and as the briefs that we're here to talk about discuss in detail, have understood it to be the case that presidents are not above the law and that they are subject to the very laws that they are required to enforce. Nixon accepted a pardon based on his understanding that he could have been indicted, and, as we know, a pardon is actually an admission of guilt.

That's sort of the scene-setter, how we got here. He filed this immunity defense. It is something that allows him to take appeals before the end of the case, which is not customary in criminal cases, but arguably attaches to an immunity defense. So we've gone through the D.C. Circuit, and now we're at the Supreme Court.

LAW DORK: And there was originally an attempt to sort of leapfrog over the D.C. Circuit, and to have this considered as early as probably January or February. And the Supreme Court denied that. Does anybody have any thoughts on that, and the timing of this case, in terms of why we're here now, as opposed to why the court didn't take it sooner?

PARKER: The timing of this case is extremely important. As we know, the defendant is the former president who is also the presumptive nominee for the Republican Party for the 2024 election. The charges he is facing involve an attempt to interfere with a lawful election, to stop the peaceful transition of power when he was president the first time, and he's seeking to reassume that same office and be in a position to do similar things again. So time is of the utmost in order, not to decide the election, voters will decide the election no matter what, but for the public to hear the evidence around those charges, and for a jury to decide what to do with them, in advance of voters being asked to consider the defendant's candidacy.

So that is, I think, why — the Special Counsel's Office refrained from saying so explicitly, but they certainly argued that time was of the essence in the case. And that is why they sought to skip the D.C. Circuit and seek a writ of cert before judgment, which is unusual but not not unprecedented and has happened actually quite a lot in recent times, particularly with this court.

And if you look at all that has transpired in the few months in between, given that the Supreme Court went ahead and did decide to take this case, it seems like the Special Counsel's arguments were well taken, and from a public interest point of view, and there is a public interest in speedy resolution of criminal cases, generally, and certainly particularly so in one like this, it would seem in retrospect, that the Special Counsel's arguments were well taken, and it would have been a good thing for this to have gone before the court several months ago, when the Special Counsel asked for it.

HOLLY BREWER: I will add to that, that there's been consistent efforts by the Trump team to delay justice. And in the early modern period, in the years after the revolution, when the Constitution was being designed, it was assumed that any case like this would have been heard within a matter of months, so would have been heard — we're coming up to four years since these events happened, and this should have happened within six months or less. And so there's so many technicalities now that have been used, have intervened, and also so many attempts to delay justice from the Trump team, that something that should have been heard right away and disqualified Trump probably from becoming the official nominee did not happen in a timely way.

KATHLEEN HARTNETT: I might jump into with one other thought I had about the timing issue, because I think the normal practice would be for the Supreme Court to wait for a federal appeals court to rule and there have been some notable exceptions — and we can kind of bracket whether those are wise or not. But I think here, you know, in a way, I think the Special Counsel kind of had to do that, because it precluded an argument later that they had sat on their hands and had not sought review quickly. And there's these other principles about rulings too close to the election being a problem. And so I think that was an important box to check, even if they weren't going to get the review.

I also think we now have the D.C. Circuit, the benefit of that ruling — and the questioning and answering that happened at that argument — that have helped to kind of gel the debate. So, regardless of whether it would have been better to have this all happening sooner, in a way, it did kind of illustrate how it can generally be helpful to have the normal process play out. It just would be nice to have it play out, you know, as quickly as possible.

PARKER: And it's certainly the case that, however this all shakes out, if we get a decision — and really based on the way that the Supreme Court treated the issue with with Trump's potential ballot disqualification in the Anderson case, we should not see them waiting all the way until the last day of term to issue an opinion in this case. But if we get into a situation where there's the potential for a trial very close in time to the election, the person responsible for that will have been former President Trump, who was the one who has asked for all of this delay. As Kathleen rightly points out, one feature of the Special Counsel's effort to get cert before judgment would have been to have the trial much further away from the actual voting than it may well now be.

LAW DORK: The March 4 dates that we all remember was the original trial date that, obviously we're now five weeks past that with no clear date set. So the case was granted and we have these briefs coming in and, just to go through it: I looked through the the Trump and Special Counsel's briefs and you sort of have — both sides go through this three-tier argument, where Trump is arguing that there's absolute immunity, the Special Counsel's arguing that there isn't absolute immunity.

And then Trump argues that if there if there isn't absolute immunity, there should at least be qualified immunity, whereas the Special Counsel argues, even if there is some immunity, it shouldn't be used here.

And then, at the end, both sides say that, regardless, if you don't agree with us completely, this can be dealt with on remand at trial, which I thought was interesting in a way, because obviously, for the Special Counsel, that gives them a chance to argue that there were enough non-official acts, even if you find immunity, but obviously — and you can almost read it off the pages of Trump's brief — this would be more delay for Trump if it gets remanded.

So, Kathleen, can can you talk about what is the setup for these arguments? And like what we're going to be seeing from John Sauer and Michael Dreeben on the 25th?

HARTNETT: That's a great question. You can never totally predict. And I think that, in a way, the parties briefs — we just got the reply brief from from Trump today, so we're still reviewing that. But you want to lead with your full-throated argument and try to make it about a full win, but you also want to have your backstops in the brief to make sure you're not going in with the full win and having no one agree with you and then not have much to stand on.

So I agree with your assessment that it seems as if both the special counsel and, to some extent, Trump are trying to find ways to make sure that their more maximalist, for lack of a better term, positions on each side are not the only thing they can talk about if the court ends up trying to be interested in a more minimalist resolution. In a normal circumstance — and again, it depends on the case and the situation — the court is not typically, or at least historically been, interested in trying to maximize rulings where it doesn't have to and trying to find something that fits more the facts of this case. So you could imagine a ruling that they don't need to resolve the ultimate question if there's enough, for example, non-official acts or some other some other way to kind of reach the narrower result. But on the other hand, again, the parties spend most of their time trying to take on the maximalist position, so it'll be interesting to see if the court wants to take it somewhere else.

LAW DORK: I went through these arguments, looked through the briefs, and and it seemed like the the two briefs that really stood out to me were your two briefs. The former military officials brief and the founding scholars brief. The line, and we'll see how you feel about the lines that I chose that I thought were really interesting. In the the military brief, this idea that "our legal system does and should continue to subject the president to criminal laws, just like every other individual in the chain of command, thereby lessening the likelihood that unlawful orders are issued in the first instance."

Kathleen and Kristy, can can you talk about this concern? I feel like the brief really gets into this idea of something that hasn't been discussed as much in the context of the Trump case. The actual fact that we're talking about the former commander in chief here, that he's not just the executive who's signing bills and making administrative rules, but that this is actually the person who was running our military when he was in office.

HARTNETT: Yes, that's a very good point, and kind of an important piece of context to keep in mind. Our brief was on behalf of 19 former high-ranking officials in the military. We had four-star admirals and generals, former secretaries of the U.S. Army, Navy and Air Force — 19 of those folks who had served from every administration from President Kennedy to President Trump. I think we felt happy — and that understates it, I think — to have the power of that collective thinking, kind of bipartisan and nonpartisan really.

It's a brief about the military-civilian relationship, which I don't believe current members of the court have had military service, I could be wrong on that. But it's always instructive for people that are not part of that world to kind of understand it more. And in particular, what it means for there to be an order coming from the president him or herself.

And so I think in this situation, our amicus, I hope is kind of serving the real function it's meant to as a friend, which is to point out some important context and reality that may otherwise not be part of the formal legal arguments. And here it's: How does it functionally work to have the commander in chief be the civilian head of a military force? And what does it mean to have the important trust and other relationships that are necessary to have that function well, and to continue to function as the protector of a free society?

I think the notion here was — and the the line you focused on is — at the end of the day, a member of the military should not follow an unlawful order. But the question here is, among other questions, how do we continue to make the make that likelihood of that having to happen as low as possible? And so I think our brief, among other arguments, points out that removing the kind of understood notion that there would be a potential criminal liability for the commander in chief, were the commander in chief to undertake a criminal act, would both just demoralize the force, kind of break down those bonds of trust, but also possibly increase the risk of people not disobeying an unlawful order. I think those are some of the key points we were trying to make through the very deep experience that our amici have in this sphere of how does this really work in practice.

LAW DORK: Kristy, it was sort of jarring to read an amicus brief that is discussing the My Lai Massacre, at length. Can you talk about the discussion of that and how you decide to talk about that in a brief to the Supreme Court?

PARKER: Sure. That was a really seminal event in — I'm sure that our historian here would say, very recent American history. But that was an event that really just crystallized how actually difficult it is for — and this is not to excuse it at all — it's very clear, and has been clear, certainly since the Nuremberg Trials well established that people who take an oath to the Constitution and to the law, and in particular, people in the military, have have a duty to disobey unlawful orders and that it is not a defense to any criminal liability to say, "I was just following orders."

But that obviously unlawful order was given there. What happened there was a war crime, it was disastrous for the victims, and it was a disaster for the credibility of the United States and a disaster domestically for our politics. And some people did resist the order, and later were commended for it — much later. But William Calley did it, as unlawful as it was, even given other people who were resisting, he did not himself resist. And that order did not come from the president of the United States, that just came from his direct chain of command.

One of the reasons we thought it was important to give that as an illustration — and our amici certainly thought it was important to give that as an illustration — is because it would be even more difficult coming from the commander in chief him or herself, to actually defy that order. And, frankly, the doing of that, which we've never seen in American history would itself set off a constitutional crisis.

And I'll just say, I found it personally really impactful to hear our amici raise that example because I prosecuted government officials for violating their oaths of office in police misconduct cases. So you've got a duty to resist an unlawful order to do what happened with Derek Chauvin to George Floyd or to do what happened with Rodney King 30-odd years ago. Those folks have a duty to resist that sort of unlawful order and we see throughout history how very not often it actually happens because of the pressures that people are felt to face. So it was really important to crystallize this for the court and have it come from people who understand what it's like to be in the heat of battle, and to have them explain it to the members of the Supreme Court so that they'll understand what the stakes really are here.

BREWER: Can I just pipe up here? This was an explicit concern during the Constitutional Convention, during the ratifying conventions, particularly that the President was commander in chief and would have this extraordinary power, how do you make sure that power is adequately checked. And so, putting in the possibility of not only impeachment and removal, but also prosecution, was crucial to making sure that the president that didn't easily become a tyrant and do exactly what we're talking about. And it was one of the important conditions in the ratifying conventions — this was thoroughly vetted, this question: Would there be these checks on the president? — because of exactly the situation that's raised in this other brief by military officers.

LAW DORK: Holly, to that end, in your brief, I thought it was it was pretty remarkable in light of the discussion that we've been having over this this past year now about Trump's immunity claim, when you sort of lay out the actual history — some inaugural justices of the Supreme Court who said the exact opposite of what Trump is arguing today. And, the aggressive line that I saw in your brief, was this: "To justify Trump's radical assertion, he contends that the original meaning of the Constitution demands it, but no plausible historical case supports his claim." Can you talk about what this was?

BREWER: So I was asked to be on the Brennan Center's Historians Advisory Council in December, or actually earlier, but I was talking to them in December, and I said I thought the Supreme Court would take this case up precisely because of how presidential immunity claims have been gaining steam, which essentially, are what Trump's lawyers have been arguing — that essentially presidents have the powers of kings, including some level of immunity. I knew from having read so many of the original treatises — like Joseph Story like, St. George Tucker — that they had explicitly rejected keeping the common law powers of kings, and particularly in terms of immunity.

So I knew that that perspective was really important to get it out there, but somehow nobody seemed to realize it. But as part of writing this brief, we went back comprehensively through all of the constitutional debates and ratifying debates. And what was really startling when we did it comprehensively was there was no voice — literally none — that made this argument.

A lot of Federalist Society lawyers who have taken the position that there is a unitary executive who has certain kinds of privileges emphasize, in particular, Alexander Hamilton speech at the Constitutional Convention, where he said explicitly that he wanted a lifetime executive. And people have said, "Oh, that's sort of like he wanted a monarchy," et cetera. But Alexander Hamilton explicitly said, "during good behavior," which if you know the legal debates of the 17th and 18th century, those are code words, which mean impeachable, prosecutable, removable — this is about removing corrupt officials. So there was — not even Alexander Hamilton, who, if anyone might have come the closest, not even he took this position. There was literally no voice.

And the other side has occasionally chosen a quote from the anti-Federalists to say that some of the ratifying conventions thought the president was too much like a king, but these were always objections to say that under the Constitution there's not enough checks on the on the president's power. George Mason was one of those who was a member of the original constitutional convention, but then, in the end, was an anti-Federalist, exactly because of this concern.

LAW DORK: Now, when when we move forward, and we have the arguments, obviously, we're going to have Michael Dreeben, up there who was in the the Solicitor General's Office for a long time as sort of one of the leading criminal lawyers before the Supreme Court. Then there's John Sauer, who is Trump's lawyer, who, if anybody listened to the D.C. Circuit argument, is where we got into a lot of these sort of winding loops that Trump has been in where you got the headlines that you would be able to call for the assassination of your opponent, and Sauer couldn't answer it. What are you going to be looking for at the arguments on April 25? And we can do a little round-robin here, starting with you, Kathleen.

HARTNETT: Yeah, it's going to be interesting. It's hard to know. At some level, the advocates in front of the Supreme Court are sort of players but not totally driving the discussion. The questions will come, the justices will potentially engage with each other through the attorneys. So, each of them will be coming in with potentially a different approach to either building consensus for their position or narrowing the question to something that they think they can get a majority for.

So, things to look for: As you pointed out, Michael Durbin's a very familiar face — less so in the years since he's been out of the SG's Office, but he will be known to the justices, someone who's been before them on important issues many times. And so I think he'll be a credible voice, but they'll push him. I think the newer-comers will have a challenge — which can be frustrating to the justices, if they're not at the level that the advocacy needs to be to be able to deal with the questions quickly and move on to the harder things, which is what they want to do. But I think they're not going to spare any punches if what we've seen from some of the other recent arguments where there have been relative Supreme Court novices trying to take that on. They're gonna want to — this is important.

Also, though, just the way that the arguments are proceeding now, with letting the person that's advocating get their couple minutes out before the questions start. It could go on for some time. This is a chance for the justices to talk to each other, and so I think this could be a long one in the sense of just seeing how the arguments unfold — if there are any new concessions, or other kind of provocative remarks that need to be developed. I think it's just unpredictable.

I will be interested also, just to look at the former federal government lawyers in particular, to see how they react to this. Because the rule of law is something — I was fortunate enough to be in the government for a few years — it's just something that we take so for granted. And so to see how those folks react to this argument will be interesting to me

LAW DORK: Holly?

BREWER: I think the thing that I was happiest about in terms of our read was that Michael Dreeben wrote us a note saying it was well done, which was so cool. It's incredibly cool.

But what I noticed and what spurred me to action in terms of volunteering to be the main author on this brief was the widespread claims that I've been seeing in all of Trump's lawyers' materials, that the chief executive under the common law had traditional powers that continue to be the powers of the president under the Constitution. And the chief executive under the common law was, of course, the king. They never say a king, they just say chief executive under the common law.

And one of the things I'll be looking for is, we have now provided the material to say that that part of the common law was explicitly rejected, not only by the Constitution itself, but by all the justices writing about what of the common law applied after the revolution and what did not. So I will be looking for quotes from St. George Tucker or Joseph Story or others showing this explicit rejection of monarchical prerogatives for the president.

And then the second thing I'll be looking for is the actual quotes from, in terms of Joseph Story, in particular, it was so impressive the way he took apart the argument of the purpose of impeachment and conviction, explicitly in his 1833 treatise, the first treatise on constitutional law. He took apart why impeachment was separate. And he said impeachment and removal is just about removal from a political office. But that doesn't mean that the president isn't also subject to the criminal law. He has pages where he explicitly addresses not only why it's a separate process, but why it's so important that there is this accountability, because the purpose of the president, the only purpose of the president, is to take care that the laws be enforced appropriately. And if a president can do whatever he wants, that violates, 100%, the purpose of the of what a president is supposed to do.

So it's those two parts of our argument that I think were least known and can provide the best ammunition in terms of what Jack Smith's team are trying to answer in terms of presidential accountability.

LAW DORK: Yeah, I was actually going to ask a follow-up about the impeachment questions since that came up. So, you took care of that. Thank you.

Kristy, what are you going to be watching for?

PARKER: So I think from a very practical, former prosecutor point of view, I'm going to be looking for indications about whether we're going to get an expeditious decision in this case, whether there appears to be broad agreement around the question that there should be no broad-based immunity from criminal prosecution for a president, there certainly should not be immunity under the circumstances in this case. And I will be hoping not to see anything that indicates that there's going to be a remand that will entail further delay. And we really should not see anything like that.

I think one of the things that's important to point out here is just how much unanimity there has been in the legal community, both the community of lawyers and also the judges who have heard these issues, that there should be no general immunity from criminal prosecution for a president. And there certainly should not be such immunity for the acts that are alleged in this case. It's a broad, cross-ideological group of people. We've had people like former Judge Michael Luttig, who is a mentor to some of the justices on this court, who has said that he thought the decision should be nine to nothing. We've seen briefs from former Federalist Society members, discussing why there should be no immunity in this case.

And when we look at the judges who've looked at it, it's a bipartisan group of judges. We had the Democrat-appointed District Court, we had a panel on the D.C. Circuit that included Karen Henderson, who's a George Bush appointee.

And when you look at the at the specifics, when you talk about the question of "well, maybe there's some immunity, but there isn't immunity for other things." A separate panel of the D.C. Circuit that included Judge Katsas, who worked in the White House Counsel's Office with former President Trump and who shepherded the nomination of Justice Gorsuch to the court, he was on a panel that said acts very similar to those in the criminal indictment were not official acts — were the acts of an office-seeker and not an office-holder.

So there's been a lot of uniformity on this issue across the ideological spectrum, so I would very much hope not to see anything that indicates that this Court is going to go a different way or anything that indicates that they are going to further delay this case, because I think, as we all know, the court's own legitimacy as an as an actor within the three branches of government and as an actor in a democracy is also on the line here in a case like this, where we are seeking to hold accountable someone who is alleged to have interfered with the peaceful transfer of power and mounted an insurrection to overturn a free and fair election.

If we can't impose an accountability for that, as our brief points out, democracy around the world is one of the things our military defends and promotes, and we don't want to give ammunition to the people who say that our democracy isn't what we say it is and is a lie. And if we can't have accountability in this situation, we would be running very close up against that problem.

LAW DORK: Thank you so much. Does anybody have any closing thoughts, anything that you needed to get out that I hadn't asked?

BREWER: I have just one thing. I think what was really astonishing to me, in reading St. George Tucker's treatise on the first American edition of the common law post the revolution, was that when he was discussing this, his hypothetical case of when a president should be prosecuted sounded a lot like what happened on January 6. So he actually says, let's see if I can find the quote.

"If a President of the United States should, by his own authority presume to raise an army," — so this is St. George Tucker, writing in 1803 — "If coupled with evidence of a sinister design and intention of so doing, would, I concede amount to an overt act of treason against the United States, such a president," he writes, "would be subject to impeachment and then to criminal punishment." When you think about the insurrection, I guess it's not quite an army, but certainly there's an element to that, calling everybody to come on that day.

What was so striking is to see St. George Tucker in this book that was used to train generations of judges and lawyers in the founding era, his hypothetical is so close to — I mean, obviously, Trump is being charged with slightly different things — but this is exactly what they were most worried about.

LAW DORK: And that that is a point, I think, that brings both of your briefs together. Which is really interesting to me, it's sort of like, from the beginning of the country to the military leaders who have led it over the past 50 years. That this concern, in particular, relating to the transfer of power, both in the underlying principle of the country and the sort of democracy-spreading goals of America, that this this particular case makes it all the more concerning. So I really, highly recommend that people look at both of these briefs before the arguments on the 25th, and we'll see what the justices have to say about either of them or both on the 25th.

Thank you so much for joining us, and I look forward to talking with all three of you again soon.

BREWER: Thank you for having us.

HARTNETT: Thank you, Chris.

PARKER: Thank you.