MUST-SEE: Jamie Raskin drops WORST NEWS on Trump

we've got a hugely topical episode today

I have the incredible honor as always of

being joined by my co-host for our

series class with Jamie Rasin where the

congressman debunks right-wing

constitutional fallacies and fever

dreams today's episode could not come at

a more opportune moment as the Supreme

Court now considers the question of

presidential immunity for Donald Trump

and while there's a lot of spin out

there no one to better counter that

disinformation than Jamie Rasin so I'll

hand it over to the congressman who will

take on the right-wing fallacy that as

commander-in-chief the president has

both the power to do whatever he wants

and absolute immunity from any legal

consequences for criminal actions Brian

thank you so much I'm delighted to be

with everybody uh today we're taking on

a fallacy that's so obvious so glaring

and so striking but what's interesting

is um that sometimes it's the most

obvious fallacies that are the trickiest

ones to debunk and refute I remember uh

Sherlock Holmes once saying that there's

nothing more deceptive than an obvious

is fact and that's definitely true in

the age of Donald Trump because um this

is a case of first impression like so

many of the other issues that are raised

by Donald Trump because no other

president has acted in such extreme and

explosive and incendiary ways so it's

not like there's a bunch of precedents

that map out how to respond to it and so

we have to uh search through the

Constitution to explain why his actions

are completely in derogation of the

Constitutional fabric itself the case

that is being considered by the Supreme

Court Donald Trump's claim that he's

absolutely immune is indeed a case of

first impression um just like many of

the other uh fallacies that he has

floated during this period but what

we're going to look at is this one as

commanderin-chief of the nation the

president has both the power to do

whatever he wants and absolute immunity

from any legal consequences for his

criminal actions now there are actually

multiple fallacies tucked in here I've

snuck in like a a law professor on a

final exam the first is as

commander-in-chief of the nation which

the president is not that is not his

title he's commander-in-chief of the

Army and Navy during times of actual

conflict from article two of the

Constitution and uh of the militias when

they're called up into actual service so

any president who walks around saying

I'm the commanderin-chief like he's the

dictator of the country is just

absolutely wrong um but the central

fallacies here are that the president

can do whatever he wants something that

we heard repeatedly from Donald Trump

when he was in president he says and

then there's the article two which

allows me to do whatever I want of

course the central job of the president

under Article 2 is to take care that the

laws are Faithfully executed not that

the laws are violated or the laws are

departed from but the laws are

Faithfully executed and if the president

could do whatever he wants then why do

we have have the power to impeach and

convict the president for treason

bribery and other high crimes and

misdemeanors um and then why do we have

the power to prosecute him or do we

because that's what this case is really

about that has gone up to the Supreme

Court United States versus Trump that

was found against the president um in

District Court by judge chuckin against

the president by the DC circuit panel an

excellent panel made up of judges pan

Henderson and Childs two Democratic uh

nominees to the bench one Republican

nominee to the bench but all unanimously

rejecting Trump's claim what does he say

he says a former president cannot be

prosecuted criminally for anything that

he did while he was in office pursuant

to his office and again no president has

ever alleged that before which is why

it's so foreign and so strange to our

experience um the judges in the DC

circuit do a great job of leading us

through this and I'll kind of follow

their lead and embellish a little bit on

um several different points but the the

first point I want to make is generally

about the structure of the Constitution

um article one puts Congress in the

first article for a reason which is that

we overthrew a king we wanted to get

away from monarchical government and we

wanted to vest power not not in a

monarch a lord in a zar or an emperor

but in we the people and the House of

Representatives and the Senators and the

Senate are the representatives of the

people and we are the law making branch

and if you look at the Constitution as I

hope you will you will see that article

one goes on for a long time setting

forth all of the powers that Congress

has to regulate commerce among the

states to regulate commerce between

America and other nations to uh coin

money to govern naturalization to govern

the district that's to become the seat

of government um and on and on and then

in article one section 8 Clause 18 and

all other powers that are necessary and

proper to the execution of the foregoing

power so it's very expansive then you

get to article two section three and

look at that last phrase there this is

really the core of it you know it's

about naming ambassadors and so on

giving a State of the Union Address he

shall take care that the laws be

Faithfully executed um and shall

commission all the officers of the

United States that's it and then you get

right into section four after stating

that the president shall Faithfully

execute the laws um setting forth how

the president can be impeached the

president VP and all civil officers

shall be removed from office on

impeachment for and conviction of

treason bribery or other high crimes um

and misdemeanors but I just want you to

keep that design structurally generally

in mind as we get into this issue

because Congress has put first and the

president's job under section two is to

take care that the laws are Faithfully

executed to implement the laws of the

Congress all right now um Trump uh

attempted to bypass and

overthrow the Constitution of the United

States when he tried to stay in office

in the weeks leading up to January 6th

and then on January 6th itself uh that's

what this case is about uh this case

comes from the criminal trial of Donald

Trump on four charges that have been

brought by special counsel Jack Smith

the first is a conspiracy to defraud the

United States of America by collecting

all of these fraudulent Electoral

College slates from different states and

then asserting that these are the

Bonafide honest electors determined by

the states in their presidential

election which they most assuredly were

not the second is the conspiracy to

obstruct a federal proceeding here the

joint session of Congress called under

the 12th Amendment to receive the

Electoral College votes sent in by the

governor ERS through their certificates

of ascertainment sent to uh the house

and the Senate and to the archist of the

United States um third is actual

interference with the federal proceeding

um and then the fourth is violation of

the voting rights of the people a

conspiracy to deprive uh persons of the

United States of their right to vote

okay so those are the four criminal

charges Donald Trump asserts against all

of them that he's absolutely immune uh

from Criminal prosecution for official

acts he undertook as president now one

of the amusing things about that is

asserting that the attempt to overthrow

the presidential election was an

official Act of course His official

responsibility there was to leave office

after four years um and to take care

that the laws were F Faithfully exec

uted including all of the laws passed

under the Electoral College Provisions

in the Constitution that's what he was

supposed to do but he's saying no he

undertook these official acts to try to

get the state legislator to set aside

the Electoral College votes uh by trying

to get state election officials like

Secretary of State Brad raffensberger in

Georgia just to find him

11,780 votes um and then by trying to

get the Department of Justice to falsely

declare it a corrupt and fraudulent

election and then finally by trying to

get vice president Pence to step outside

of His official constitutional role um

administering the uh counting of the

Electoral College votes the idea was to

try to get Pence to force it into a

contingent election or just to go ahead

and announce that Trump was president

and then Trump was prepared to ride over

on the shoulders of the mob um like

musolini and come in and simp

declare himself uh uh Emperor excuse me

president uh again and then um invoke

the Insurrection act and call in the

National Guard to come and put down the

insurrectionary chaos that he had

Unleashed against us all right that was

basically um the plan well um he says uh

you can't charge me for any of these

things I'm absolutely immune from

Criminal prosecution as a former

president now now um on behalf of uh

Trump's argument let's say uh let's

stipulate this there are some

constitutions in other countries which

make former presidents immune from

Criminal prosecution uh for things like

coups and insurrections uh one of them

for a while anyway was Chile which said

that

Pino um could not be prosecuted and this

was part of an arrangement they made

with the new con stion he would have

immunity from Criminal prosecution very

explicitly set forth in that

Constitution there's a couple other

examples there's nothing like that in

the US Constitution and of course as

we'll come to see it cuts against

everything we believe about our

Constitution and its entire uh

constitutional design so um and in fact

that Common Sense uh intuition was

articulated by the Republican judge in

the DC Circuit Judge uh Henderson

um who said that it would be a striking

Paradox if the one person in the country

charged with taking care that the laws

be Faithfully executed could defy and

violate the laws and then be exempt for

his violation of federal criminal laws

um in the process all right so how do we

go about looking at this claim well um

Trump says first of all the he's so

immune from prosecution it's not even up

to the courts to determine whether he's

uh immune from prosecution or not uh

that of course is ridiculous under

Marbury versus Madison the uh famous

Supreme Court decision rendered by Chief

Justice John Marshall proclaiming the

doctrine of judicial review that the

Supreme Court um uh has the right the

power and the duty to declare what the

law is it's emphatically the provin and

duty of the court to say what the law is

and to sort out you know precisely these

kinds of uh these kinds of conf

conflicts we've got Supreme Court

decisions um that stand for the

proposition in fact that the Supreme

Court can review presidential actions

for their constitutionality and here's a

great one everybody can remember it's

called the steel seizure case in this

case um President Truman faced a series

of strikes around the country and was

nervous along with Congress that the

shutdown of the steel industry would

interfere with necessary production of

Weaponry during the Korean War and

Congress attempted to give uh President

Truman the power to intervene to reopen

the steel plants by seizing the steel

plants taking government possession of

them and then um commanding uh

production of Steel that failed in

Congress Congress rejected that effort

but then the president uh Truman just

went ahead and did that anyway and he

said we're going to take possession of

the steel plants in order to keep the

war effort going and I'm going to invoke

my War Powers my Powers as

commanderin-chief during a a time of

actual conflict in order to do this and

the Supreme Court said well wait a

second here um the president of the

United stat has the job of enforcing the

laws and Justice Jackson set it out

nicely in his concurring opinion where

he said think of it kind of like a stop

light um either you've got a green light

where the Constitution specifically

gives the president the power to do

something like to appoint the officers

in the in the uh cabinet subject um to

the advice and consent of the senate or

to name ambassadors subject to advice

and consent those are clear uh

delegations to the president to be able

to do something there you got a green

light and nobody can say oh no the

president you nominated the wrong person

that's not the best qualified person

that is totally within Presidential

Power to decide that okay um a red light

would be something where a power is

vested by the Constitution in another

branch of the government take for

example the power to declare war that

power is given to Congress but let's say

the President says this is such an

important matter such an important

foreign policy conflict I'm going to

take away from Congress the power to

declare war and I am going to declare

war right now for the country that's a

red light that would clearly be um

unconstitutional and uh under Marbury

versus Madison the Supreme Court would

have the power to revoke that but then

there's the yellow light situation and

this is where um a particular power is

not specifically

enumerated either under article two for

the executive branch or under article

one for the legislative branch and

Congress has not said anything about it

it's neither delegated that power

explicitly to the president nor has it

attempted to delegate that power to the

president but been thwarted in the

effort to do so um and there's a yellow

light situation and that's where the

court says it's very fact-based

intensive analysis but the court said in

the steel seizure case this is an easy

one because there's nothing in the uh

the power of Commander in Chief that

explicitly sets forth the power to seize

steel mills or seize any uh instrument

of the economy or Commerce to keep

things going um and Congress might have

been able to delegate this to the

president to give him this power but it

did not do so there was a bill put in to

try to say the president has the power

over steel mills and can open them up

but it chose not to do that that becomes

a red light at that point um he

essentially has been specifically

foreclosed to undertake that action all

right all of which is to say um the DC

Circuit Court was very clear that this

matter is indeed going to be up to uh

the Judiciary to decide and in the

course of finding that the court cited

this uh significant passage that has

been uh absorbed into the bloodstream of

America over the decades it comes from a

Supreme Court decision called us versus

Lee in which the court wrote no man in

this country is so high that he is above

the law no officer of the law May set

that law at Defiance with impunity all

the officers of the government from the

highest to the lowest are creatures of

the law and are bound to obey it it is

the only supreme power in our system of

government and every man who by

accepting office participates in its

functions is only the more strongly

bound to submit to that Supremacy and to

observe the limitations which it imposes

upon the exercise of the authority which

it gives in other words in this passage

which has been you know recycled over

the centuries the Supreme Court is

saying not only is it wrong that you as

president somehow are not bound by the

law if anything you are more Bound by

the law than everybody else I like to

say that those of us who Aspire and

attain to public office are nothing but

the Servants of the people in the moment

that we think we're somehow above the

people and acting as kings and queens

and Lords and Zars and Emperors that is

um the moment certainly to evict and

eject and reject and impeach and convict

and get rid of that person um and the

Constitution gives us a lot of

mechanisms to to do so all right so now

we're looking at the question we know

that the court is in the right place to

be checking this out um now we get into

um the really the heart of Donald

Trump's claim where he says all right

you can hear my case you're going to

look at it um but I am categorically

immune from any criminal prosecution why

and here's the argument if you go to

Article 1 Section 3 Clause 7 okay and uh

bear with me because it is an extremely

tortured pinched and really comical

reading of uh this um Judgment of

impeachment Clause but what it says is

this judgment in cases of impeachment

shall not extend further than to removal

from office and disqualification to hold

and enjoy any office of Honor trust or

profit under the United States but the

party convicted shall

nevertheless key word here shall

nevertheless be liable and subject to

indictment trial judgment and Punishment

according to law now if you read that

whole thing in context and give it a

common sense read it is certain to lead

you to the conclusion that any president

or former president can be subject to

indict statement trial judgment and

Punishment now if the president is also

impeached first and removed from office

by the Senate and if the Senate decides

to disqualify that person from holding

an office

again still that convicted president can

nevertheless be liable and subject to

indictment and trial and judgment and

Punishment and you could add in

parenthesis because this is what the

Constitution is really saying just like

all the other presidents even though

they haven't been impeached or convicted

but if they committed a crime they can

but now Trump's

lawyers um somewhat cleverly I must

concede flip the entire thing upside

down and what they read it to mean is

that only presidents who have been

impeached and

convicted can be subject to indictment

trial judgment and

Punishment now look at that for a second

they read it to

say um that

basically um you know the only thing

that can happen to you if you're

impeached and convicted is removal from

office in

disqualification but you also could be

subject to indictment trial judgment and

punishment but no other president could

well that's of course not what it says

it violates any Common Sense grammatical

construction um of the terms of it um

and it is completely at odds with all

other kinds of text within the

Constitution the structure of the

Constitution and the history of it so

let's start with this it is always been

assumed in our history that a former

president could be criminally prosecuted

for offenses undertaken an office that

come to light later take the case of uh

Richard Nixon who we'll never know

because he was pardon but who at least

allegedly um ordered a number of

criminal Acts including the Breakin at

the Watergate other kinds of uh criminal

uh Espionage The Taking of bribes um

hush money all kinds of stuff um and

when he resigned from Office rather than

face um what would have been an almost

certain um impeachment and conviction

when he resigned his Vice President

Gerald Ford became president and the new

president Ford pardoned him gave him a

pardon because he did not want to see

Richard Nixon being criminally

prosecuted and having the country

dragged through that he said but

everybody assumed from Gerald Ford to

Richard Nixon to Congress to the country

that he could be prosecuted the same

thing happened with Bill Clinton who

actually entered into a uh plea bargain

with the uh independent counsil in his

case Robert Ray was his name um who

agreed not to bring charges against

Clinton if Clinton would resign resign

voluntarily resigned from the bar for a

5-year period and in order to avoid

criminal prosecution um The Bill Clinton

entered into that uh that agreement okay

so it's always been assumed that the

presid that a former president could be

criminally prosecuted um the DC circuit

says uh that it would create an

extremely dangerous precedent to say

that a former president cannot be Pro

uted for crimes undertaken while in

office because that would be an

invitation to do things like this and

this was asked uh aggressively of

Trump's lawyers in the oral argument in

DC circuit could the president order

assassination of his political Rivals

and opponents um pursuant to his power

as commanderin-chief

um or some other power that he invokes

and the answer was yes

that the president could order a

political assassination but there was

this check he could be impeached and

convicted but if he were not impeached

and

convicted uh Trump's lawyer said then he

could not be prosecuted now think about

the implications of that for a second it

means the president could order his uh

political party Rival assassinated and

the vice president for the Rival party

assassinated and their friends um and

then if he's about to face impeachment

he could just go ahead and order the

assassination

of enough members of the opposite party

for example um to prevent him from being

impeached or to prevent him from being

convicted in the Senate so as long as he

can defeat impeachment and trial then he

can get away with assassination I mean

come on I mean we are uh in la la land

at this point and I think that's when

Trump's lawyers lost uh even the

Republican judge on the DC circuit and

really lost um the interest of the

country in this argument so everybody

can see what a dangerous proposition

this is It's especially dangerous in a

case exactly like this because Donald

Trump's crimes were all directed at

destroying the Constitutional Provisions

governing succession in office look at

um the 20th Amendment the Constitution

is very clear about this uh you're term

of office as president and vice

president ends at noon on the 20th day

of January um it's over at that point

and um the procedures for election of

the president are set forth in the 12th

Amendment um which the president has a

constitutional obligation to execute and

to defend and not uh to overthrow and so

everything Donald Trump did was uh a

recipe for Insurrection and rebellion

and I think as we looked at in our last

class about the Second Amendment and

insurrectionism we have an anti-

Insurrection Constitution there are half

dozen Provisions that are set up in the

Constitution to block Insurrection and

political coups and precisely the kind

of thing that Donald Trump attempted to

do on January 6 2021 um

the uh DC circuit called Donald Trump's

efforts uh in those days an

unprecedented assault um on the

structure of our government and indeed

it was um and if you think about

it rather than being protected by the

separation of powers which is what

Donald Trump claims um his argument is a

direct affront to the separation of

powers it would collapse the separation

of powers why well Congress sets forth

in federal law what you can't do for

example you cannot violate the voting

rights of the people you cannot

interfere with a federal proceeding

although now that statute has been

challenged in court in the fiser case

and I hope we'll get a chance to talk

about that at another Point um but you

as uh president cannot attempt to

defraud the government of the United

States as he did okay so if the

president is exempt from prosecution for

violating clear federal laws that denies

Congress the ability to legislate it

also denies the executive branch itself

the ability to prosecute which is an

executive branch function and the

President should be taking care that the

laws are Faithfully executed in priding

over the prosecution of violations of

law not thwarting them

especially when it relates to him as

Madison put it nobody can be a judge in

his own case that's a cardinal principle

of anglo-american law um and similarly

with the courts if the

president absolutely immune from

Criminal prosecution for acts undertaken

in office well then the courts are not

able to uh take up an actual case or

controversy and adjudicate the merits of

them to determine whether or not a law