Presidential Immunity

Episode Notes

Transcript

Lawyer 2 Lawyer

Legal Network Group

Presidential Immunity

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Intro: We need to send a message which is, if you commit a crime and the prosecutors collect enough evidence, and they can convince a jury beyond a reasonable doubt that you’ve committed that crime then, you should be held accountable for that.

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Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

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Craig Williams: And welcome to the Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a blog named, “May It Please The Court.” And I have two books out titled, “How To Get Sued” and “The Sled.”

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Craig Williams: On Saturday, November 7, 2020 after nearly a painful week of waiting for the results of the 2020 election, the networks announced that former vice president, Joe Biden would become 46th president of the United States. And as we sit here today, President Trump has not yet conceded, but instead filed or intends to file a number of lawsuits against the select swing states claiming voter fraud and demanding recounts.

On January 20, 2021 next year, it’s expected that President Trump would leave the White House and return to life as a private citizen, but without the protections and with a loss of presidential immunity. A number of currently pending lawsuits, an investigation awaits the president after his departure from office; for instance, New York City is specifically targeting President Trump and his business dealings with a criminal investigation by Manhattan District Attorney, Cyrus Vance.

So today on Lawyer 2 Lawyer, we’re going to be discussing the potential litigation that could follow President Trump after he leaves office. We’ll take a look at his current immunity from prosecution as president the loss of this immunity and what may be to come for the president.

Craig Williams: Our guest today is Attorney Atty. David S. Weinstein, partner with the firm Hinshaw & Culbertson. David represents companies and individuals in white-collar criminal defense in addition to seized asset recovery, financial fraud investigations, corporate compliance, and anti-money laundering. He has decades of experience especially in South Florida as a criminal defense attorney, and also as a federal and state prosecutor. As an assistant U.S attorney for the Southern District of Florida for approximately 11 years, David tried 35 jury trials.

Craig Williams: Welcome to the show, David.

Atty. David S. Weinstein: Greg, thanks for having me.

Craig Williams: Well, David let’s talk first about presidential immunity. What’s involved from the justice department’s standpoint?

Atty. David S. Weinstein: Well, the whole rationale besides the immunity that’s awarded to a president from the Department of Justice is not that it shields the president or gives him absolute immunity from committing a criminal act. We would hope that a sitting president wouldn’t commit a criminal act, but rather, the prosecution actively of a sitting president is one that is frowned upon, and not allowed by Department of Justice policy for a variety of reasons.

Primarily amongst that is that, in their viewpoint as far back as an OLC, opinion of legal counsel memo they wrote in 1973, it interferes with the sitting president’s ability to carry out the duties of his or her office. If you’re fighting against a criminal investigation, while you’re sitting as a president, you’re certainly going to be distracted from the power that you hold and what you’re supposed to be doing.

So, at the core of their decision not to prosecute a sitting president, is this idea that as the executive officer, you have to be focused on what you’re doing. Now, that doesn’t mean that there won’t be an investigation or can’t be an investigation. It’s unlikely because the attorney general works at the pleasure of the president. But what it means is that, as a president, you don’t have to fear that you will face an act of indictment while you’re still occupying the office. And that’s all well and good assuming that the premise that you’ve offered that the president isn’t committing crimes while he’s in office is ongoing.

Craig Williams: What happens in the circumstance where there are crimes that are committed during the presidency?

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Atty. David S. Weinstein: Well, you know, two things happen there. Presumptively, if the president commits what we’ve all come to learn as a high crime or a misdemeanor, he or she is going to be put through an impeachment process, and those crimes that he is committing while he’s sitting in office are going to be brought before the houses of congress and there’s going to be a trial and there will be an impeachment proceeding and there will be a verdict afterwards.

Atty. David S. Weinstein: So, that covers crimes that occur while the president is sitting there and actively committing those crimes. It doesn’t protect a president from crimes that were committed prior to entering an office or crimes that occurred while he was in office that weren’t covered by the impeachment proceedings.

Craig Williams: Is there a question about whether the Department of Justice should remain under the executive branch and under and serving at the pleasure of the presidents or whether it should be over in the judicial branch as part of an independent organization?

Atty. David S. Weinstein: Well, it’s tough to shoehorn in someone who is an investigator into the judiciary the way that our constitution and separation of powers was established. Back when this country was just an infant, they set up the three separate places where they wanted power to reside; and that would be: the legislative, the executive, and the judicial.

Certainly, someone who is investigating and prosecuting cases is not legislating them. So, Department of Justice wouldn’t fall in the legislative branch. Just the same, the judiciary is charged with adjudicating these cases that come before them. So, it couldn’t fit within the judicial branch. So, all that leaves is the executive branch, and that’s why the attorney general’s office is within that branch.

The problem becomes he or she as the attorney general is supposed to be an independent person and an independent thinker and not beholden to the person to whom they serve at their pleasure. Now, they serve at the pleasure of the chief executive and that’s certainly going to influence them, but there had been attorney general throughout the course of time that have simply made sure that justice was served.

There had been stories if you go back to the Kennedy administration, people said that, his brother, you know, was his right hand man, his consiglieri, the same terms they’ve used to equate Barr and Trump, certainly with John Mitchell and his role in what took place during perhaps, would be the most corrupt executive that was sitting in the office. There were these same sorts of allegations there, but you know, other than that, you find that most attorney’s general, serve the public and they balance their acts between investigations and collecting evidence, and making sure that the law is upheld.

Craig Williams: Well, it’s a joke, but it’s almost like, we should put the Department of Justice in the fourth estate with the Press.

Atty. David S. Weinstein: That wouldn’t be a bad place to put them either because you know, it seems these days that the Press and the Department of Justice are investigating a lot of the same things, and having success and failure at the same time.

Craig Williams: And let’s talk about the expanse of the Department of Justice’s role. It seems recently that the Department of Justice has taken steps to represent President Trump in some personal lawsuits. How does that happen?

Atty. David S. Weinstein: Well, it shouldn’t happen. The president should be in his personal business obtaining counsel from lawyers outside the Department of Justice. They’re not there to be his lawyers, they’re there to be the nation’s lawyers, and to investigate crimes that may or may not be occurring depending upon the evidence they collect against the people of the United States. They’re not there to defend the chief executive officer against allegations that are being thrown his way. It’s been corrupted over the course of the last several years to put us in a position where it certainly appears that way on a regular basis.

Craig Williams: Well in addition to the president, does the DOJ give this kind of immunity deference to any other member of the federal government?

Atty. David S. Weinstein: Not really, that’s about it. I mean, when you’re investigating the judiciary, there is also that same impeachment proceeding that could take place. The same seats for your congressmen, whether they’re senators or whether they’re part of the House of Representatives; they’re investigated, they’re impeached if that’s what takes place. But you know, we’ve seen sitting congressmen, we’ve seen sitting senators, who have been charged trying to think if we’ve seen a judge who’s sitting in a federal position, arrested and charged with a violation of law. But it’s–

Craig Williams: They’re going to get sued.

Atty. David S. Weinstein: Yes, and there have been. I just can’t think of any of their names on the top of my head right now. But it’s the policy that’s applied, is applied to the chief executive officer alone and none others.

Craig Williams: Well, let’s talk about how far that goes apparently the president has pardon power. There’s been some noise about whether the president can pardon himself, but I can imagine a situation where he could pardon Pence, resign immediately before January 20^th, and then have Pence pardon Trump.

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Atty. David S. Weinstein: Oh, that’s the only way that it could happen. Whether we want to agree or disagree the wording of Article II, Section 2, gives the president the power to grant a pardon for offenses against the United States with the exception of impeachment. So, that would lie within the president himself, we could have a scholarly debate about whether or not that means, you can pardon yourself, but it has been certainly the more established course of practice that you can’t pardon yourself. But the scenario you described would be the only route for him to get out of charges brought by the United States. That doesn’t save him from Cyrus Vance, and what’s going on in the State of New York.

Craig Williams: Well, I can’t imagine Andrew Cuomo pardoning President Trump for any kind of New York violations. But I could imagine, the Republican governor down in Florida might do that.

Atty. David S. Weinstein: Oh, absolutely. No doubt in my mind that there would be a quick commutation, and a quick pardon before the dust would even settle on any type of a conviction.

Craig Williams: Well, let’s talk and you know, we’ve been talking in some generalities. Let’s talk about what happens when this presidential immunity disappears from President Trump? What’s he facing?

Atty. David S. Weinstein: Well, on the federal side of things, he’s certainly facing charges that relate to obstruction of investigations, making false statements for any statements he’s made under oath to law enforcement or people who’ve represented themselves to be acting in an official capacity akin to law enforcement, conspiracy to commit crimes that violate the laws of the United States. And again, the immunity that cloaks the president, it cloaks him while he is the president. That doesn’t mean that, it goes with him after he leaves the office.

The reason he is not being indicted or prosecuted now is not because although we haven’t seen it, there’s any evidence that’s been collected or presented to a grand jury, but rather because they don’t want to bring active charges against a sitting president. So, once he leaves, he subjected himself to the ability to be prosecuted for any crime that was committed before or during his time in office.

Craig Williams: Well, here’s a question in the abstract, and I presume I already know the answer, but can President Trump suffer anything for what’s kind of generally known as a “litany of lies.” I think, the New York Times racks his lies to the American public and otherwise, up at about twenty thousand at this point?

Atty. David S. Weinstein: Well, you know, Craig the answer to that is that, he can lie to you, he can lie to me, he can lie to the American public, he can misrepresent to the American public about things that we all know to be factually true that he claims otherwise.

But what he can’t do is that, when he’s under oath, when he is speaking to someone who is part of an investigation, and he is giving a statement, he can’t lie to them. That’s where he would be subjecting himself to making a false statement under what’s called a thousand and one and that’s too an official of an ongoing investigation.

So, his lies to an F.B.I. agent who’s investigating something, to a person who is part of a committee that’s authorized to conduct an investigation, those are lies, his lies by signing a piece of paper where he’s sworn under oath that the statement is true and correct, that is, the type of lie that he could be prosecuted for.

Craig Williams: Let’s wax philosophical for a moment. here is this really a good idea to go after a sitting president or excuse me not a sitting president, but a president who had finished his term, is for the benefit of society? Should we leave him alone?

Atty. David S. Weinstein: Well, you know the question becomes, “How is society benefiting from allowing an individual who’s committed a crime to walk free?” A lot of what I see in defending my clients when we end up before a judge in sentencing, is one of the factors the judge considers before he or she imposes sentence is, the deterrent effect. And the message it sends to the rest of society about whether or not a crime’s been committed and how you’re going to be punished for it. And it doesn’t necessarily translate into a specific number of years, but there is a deterrent effect to going after Trump after he leaves the office, if he has committed a crime while he was in office, because the message that it sends is that, the justice system is about seeking justice for the people against individuals who have committed a crime whoever they are. And to allow him to walk away from this simply because he was the president, and he would either drag out the litigation or what kind of a message does that send to the almost 50 percent of the country who voted in favor of him, that’s not the right message we need to send. We need to send a message which is, if you commit a crime, and the prosecutors collect enough evidence, and they can convince a jury beyond a reasonable doubt that you’ve committed that crime then, you should be held accountable for that.

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Craig Williams: Well, David thank you. That’s a great thought. We’re going to take a break for just a moment. And before we move on to our next segment, we’ll hear a message from our sponsors. We’ll be right back.

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Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m Craig Williams. And with us today, is Attorney David S. Weinstein.

We’ve been discussing presidential immunity and David, right before the break, it occurred to me that, we have situations kind of annoying one I think with President Trump that he has hotels in Washington D.C. There have been emoluments clause, clause lawsuits filed against him during his presidency, which largely have gone unaddressed because it takes so long for these things to wind themselves through court. And it almost seems like, the deterrent effect that you were talking about in the you know earlier, has no effect here because President Trump is pushing the limits of the law, sometimes pushing over the limit of the law, knowing that for the term of his presidency, he’s not going to get called on it. Is there any way that we’re going to be able to deal with these things in the future on a more timely basis?

Atty. David S. Weinstein: Well, I would hope that we would be able to do that. The one thing that continues to astonish me is the ability that he has had to drag out any potential tax litigation in which he is involved, whether it’s a civil tax violation, or if it turns out that there was some sort of criminal intent. But behind the filing of false tax returns, a criminal tax violation, he is sort of been given a pass on that as well.

And I think again, that all goes back to this cloak of immunity that he’s provided by the Department of Justice. We don’t want to distract from the job that this person is supposed to do. Now that seems to have in this instance backfired, and the person who’s supposed to be doing the job has taken advantage of his cloak, and wrapped it around himself and expanded it to cover a variety of people who are very close to him.

And he’s profited not only some would say, in potentially criminal matters, but as you mentioned, with these emolument clause actions, in civil matters as well, where he’s using the appearance of his authority to get other people to engage in using properties that belong to him. So, it’s an abuse on his part that’s resulted in a very slow-moving process here not usually the case in the federal system.

Craig Williams: And how do we curb it? I mean, do we put some type of a balancing system in place where you know, you get to commit five crimes and then after the six, then we’re going go after you? Or how do we come up with a way to be able to stop someone from just completely disregarding time after time after time. And I realize that a lot of them are protocols and some of them are just precedents and not necessarily laws just the way things are done. But how do we stop somebody from doing this, like this has been done this time?

Atty. David S. Weinstein: Well, I think what you’re going to have to do is speak to your legislators. I think that the outcome of the impeachment trial would have been a lot different if the balance of power had been with the democrats, and not with the republicans. And I think that, the way that the constitution has been set up to solve that problem is that, if it’s a sitting president, you bring an impeachment action, and then you present your evidence and hopefully, the system works along not partisan lines, but along the same lines that you or I would expect a juror to view the evidence.

You have to abandon your preconceived notions when you walk into that jury box and you have to decide, the 12 of you from the evidence presented to you not based on what your political belief is, your religious belief, but did the prosecution meet their burden of proof? And if that had taken place during the impeachment proceeding, and not been slanted one way or the other because of political beliefs, the problem would have been solved and it wouldn’t have been a question of you’re allowed to commit five crimes and on number six, that’s it you’re gone it would have been taken care of through the impeachment process. But that’s the system that the founding father set up and through the years it’s now evolved to a partisan process.

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Craig Williams: And I you know, certainly the founding fathers of our country knew about grand juries because it’s sprinkled throughout the constitution. I wonder, and I don’t recall anything in my common law classes about any of the federalist papers or anybody discussing a grand jury investigating the president at any time.

Atty. David S. Weinstein: Now, I don’t recall seeing any of that either. You know, grand juries are reserved for evidence that’s being presented in criminal actions in prosecution. And again, I think what gets hidden inside all of this is that, you can conduct a criminal investigation of a sitting president, you can even present information to a grand jury, and you can seek an indictment. What you can’t do is, actively then prosecute that sitting president according to what the Department of Justice has decided because of the issues that it creates and the distractions that would be involved, the least of which would be, our leader now presenting himself to the world under the cloak not of immunity, but this time, under the cloak of an indictment where he’s presumed innocent until proven guilty. But now there are these allegations of criminal charges that are going to surround him or her each time they engage in an activity on a daily basis with not only the people of our own country, but other leaders of the world.

Craig Williams: Does that same deference apply to the various States. I mean, I know the Department of Justice has given it to him in the memo, or in the opinion, but and it appears the States have deferred, but are they obligated to?

Atty. David S. Weinstein: They’re not obligated too, but I certainly think that they know that what’s going to happen is that, it’ll get tied up in litigation.  That they will bring all the forces down and although there’ll be this criminal indictment or charges that are present, and they’ll try and drag the president in there his first line of defense is going to be.

Well, you have to defer in the Department of Justice you know, he will try and delay, try and move things along, try and quash certain things. And I think that, it would become a lot uglier before you actually got to a process where there would be a clean break and the process would move along as anybody would for anybody else.

Craig Williams: Well, as a criminal defense attorney, and a former federal state prosecutor, what’s your thought on the way things are going to end up for the president starting January 21^st?

Atty. David S. Weinstein: I think that you know, the State of New York is going to go full speed with their investigations that are surrounding falsification of business records, tax fraud, and anything that might accompany that.

Craig Williams: The charity.

Atty. David S. Weinstein: Exactly, and false statements that are made. I think certainly there have been allegations about false statements that have been made in applying for loans and certainly, those are the same type of false statements that if you or I made them in an application to get a loan from a bank, they’d come after us if they found out we were falsifying our assets. And so, those type of actions are going to move forward.

Atty. David S. Weinstein: I think that the possibility you spoke of earlier whether or not it actually happens or doesn’t where, if he is that concerned, and that paranoid about the federal government coming after him, he will resign a couple of weeks before his term is over, he will get a prospective pardon from then, President Pence which would protect him from all the federal charges. If that doesn’t happen, and he for bravado or some other reason believes that he is “Teflon”, and he wants to go at it himself, then all those investigations that were either started by the special prosecutor, that were continued by some of the other agencies, and certainly would go forward under a new administration are going to start to go forward.

And as long as the statute of limitations hasn’t run, and keep in mind that, on a wire fraud case involving a bank, that’s going to give you 10 years, those investigations are going to move forward.

Craig Williams: Do you see him pulling a Roman Polanski, and moving to a jurisdiction that we don’t have an extradition treaty with?

Atty. David S. Weinstein: Given everything I have seen in this year, and in this administration, that wouldn’t surprise me.

Craig Williams: Yet he’s also done some things with some pretty according to the New York Times, and the article that I read regarding his taxes, he’s been really creative with conservationism, where he’s taken tax deductions for lands that are right next to his house that he just gives away, and puts into a conservation easement and say, “Nothing can be developed on it.” Which he didn’t plan to do anyway, and apparently that’s been a trick that he’s been used to avoid a lot of these federal taxes that he isn’t paying. How do you think things are going to turn out for him with this IRS audit that’s supposedly been going on for what, six years now, and all of his other tax woes?

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Atty. David S. Weinstein: Well, you know I have this conversation often with people who come in for a consultation about potential tax charges. There’s a big difference between two words; and those two words are: evasion and avoidance. There’s nothing wrong with avoiding taxes, and that’s why we have lawyers who are very skilled and experienced in looking at the tax code and finding loopholes in the tax code and creating situations where you can put property around your property and get easements and avoid having to pay taxes. But it’s entirely different when you’re evading the payment of your taxes, that leads to criminal intent, that leads to criminal tax fraud investigations, and evading your taxes is certainly something that, he could have to pay.

Now, if it turns out that he just got very good legal advice from his tax lawyers, and the reason this has dragged out so long is that, the IRS has been trying to find a way to show that this was evading and not avoiding then, he will have avoided the prosecution. But if it turns out that they’re able to poke a hole in the theories that were being used by his accountants, and his tax lawyers and he was evading his taxes, well that’s not going to go away. And as we all know, it wasn’t the F.B.I. that got Al Capone, it was the IRS.

Craig Williams: And he never got immunity.

Atty. David S. Weinstein: No, he didn’t. He may have tried to get immunity through different ways and means, but in the end, he did not get immunity.

Craig Williams: Well, when President Trump will leave office, he’s also going to be facing at least two defamation lawsuits brought by Jean Carroll and Summer Zervos of sexual assault. What’s your prediction on where those cases are going to end up?

Atty. David S. Weinstein: Those are going to drag through the trial courts, through the appellate courts. You know, there are three cases that you always hear about when you’re talking about presidential activity in civil litigation: Nixon versus Fitzgerald and Clinton versus Jones. And you know, we know how Clinton versus Jones turned out and you know, the arguments that they’re going to be making there is, you know, his civil liability. But again, that would govern actions he took while he was sitting as the president and while he was engaged in activity that was part of his job. The two lawsuits that you made reference to, that had nothing to do with his job sitting as a president. And so, once he leaves the Oval Office, and once that cloak disappears, he’s going to be subjected to the same standards and the same litigation practices that any other citizen would be subjected to.

Now, his pattern and practice has been to just drag it out, and continue to litigate and file motions, frivolous or otherwise, and take it as long as it is because he believes that the person on the other side of the veer will eventually give up. I don’t think these people on the other side of the veer are ever going to give up. And it may drag out, and it may take a while, but it’s not going to go away.

Craig Williams: Well, David it looks like we just about reached the end of the program. So, I’d like to take this opportunity to invite you to share your final thoughts as well as your contact information for our listeners to reach out to you.

Atty. David S. Weinstein: Well, Craig first of all, thanks for having me on. I really appreciate the opportunity to have this conversation with you. As for my final thoughts, you know, it’s an unfortunately, a divisive time in our country, in a very strange year that we’ve all been through and I would hope that, it wasn’t something that was going to continue. But given what’s taken place, and given, I think, the overriding deterrent effect to not allow anyone to commit a crime without having to answer for it, I don’t think this is going to go away.

And absent a pardon by President Pence after President Trump resigns, I think that we’re going to continue to see and hear a lot about criminal investigations of a person who was formerly a sitting president, and that’s not going to go away for quite a long time.

As for a way for your listeners to find me, you can find me at hinshawlaw.com. We have offices throughout the country. If you want to send me an email, it’s [email protected]. And if you’re looking for another podcast to listen to, that isn’t necessarily about the law, you can listen to me on, hwtpradio.com. It’s a sports podcast that tackles the social issues that are involved with the world of sports. My co-host is Super Bowl champ, and former coach, Pepper Johnson we air once a week. We usually post our podcast up on Fridays, but you can find us at hwtpradio.com.

Craig Williams: Well that sounds like a lot of fun. I’ll sure give it a listen thanks for recommending it. As we wrap up, we’d like to thank our guest, David°S.°Weinstein for joining us today. It’s been a pleasure having you on the show.

Atty. David S. Weinstein: You’re welcome. Glad to participate and feel free to reach out to me again.

(00:29:59)

Craig Williams: We’ll do, and for our listeners, if you’ve liked what you heard today, please rate us on Apple Podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com, where you can sign up for our newsletter.

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[Outro] I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. When you want legal think, Lawyer 2 Lawyer.

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