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How the Supreme Court is shaping the future of presidential immunity


This interview originally aired on "In the Moment" on SDPB Radio.

On Monday, the Supreme Court made a major ruling on presidential immunity. The 6-3 decision said that former president Donald Trump is immune from prosecution for "official acts."

Lisa Hager, Ph.D., is an associate professor of political science at South Dakota State University.

She breaks down what the decision means for future presidents and for her future politics students.
The following transcript was auto-generated and edited for clarity.
Lori Walsh:
Professor Hager, welcome back. Thanks for being here.

Lisa Hager:
Thanks for having me.

Lori Walsh:
So I've been thinking back a lot and two thoughts have come to my mind. One, I just want to come in your class as a freshman and say, explain this to me.

I'm so glad that you're here today to do that because my head hurts with all the analysis and I rely on you to distill it for me and for our listeners.

And also I think back to before Donald Trump took office in 2016 and how some of his advisors then were saying there is far more power for an American president than has been tested. And I remember wondering at the time what they meant, and now I'm wondering if this is what they meant.

So open the classroom door for this political science or constitutional law freshman and help me understand what just happened.

Lisa Hager:
Yeah, for sure. The one thing I will say in response to both of your comments is I think presidential immunity was usually maybe a half day, possibly an entire day, when I started teaching my government powers constitutional law class. And it is quickly evolving and the Trump presidency has played a big role in that.

Same thing with impeachment. That used to be a day. Now it's an entire unit.

The one good thing is it means that there's always new questions. What we're talking about is relevant and whatnot.

But it gets to that second comment where there's a lot of untested powers of the president, and we're seeing that with President Trump and, I'm sure, many other presidents in the future.

Lori Walsh:
So when the U.S. Supreme Court starts looking at these things, what are they referencing? They're referencing the text of the U.S. Constitution, the arguments of the attorneys in front of them.

What else are they putting into how they look at these individual questions of law?

Lisa Hager:
So a lot of times they're looking, like you said, at the text of the Constitution. And yeah, there's definitely the arguments that both sides are making, which are typically also grounded in the text of the Constitution and the framing of the Constitution. Trying to look at what the framers' intentions were with a lot of these different kinds of things.

And I will say as a sidebar on all of that when we're looking at Article II of the Constitution where everything about the presidency is I assign that to my students and it's relatively short. And then we start looking at Article I when we're talking about Congress and a lot of things are spelled out.

And so that's a lot of times where there's some surprise and why I say there's also a lot of questions and why we're in the situations that we're in. And so going back to my previous point, sometimes they're looking at relevant case precedent to the best of their ability.

So with this particular decision that was handed down on Monday, we're looking at things relating to the president having immunity in civil cases, both over official acts but also anything that would be private in nature. So not always the most relevant, but it's the closest that we really have to go off of. And sometimes there's arguments about Congress, but that's a hard argument to make, for instance, immunity for members of Congress because there's actually quite a bit devoted to Congress in the Constitution and more on that than what we see with the president in Article II.

Lori Walsh:
Yeah. What do you think happens next? Especially what I'm curious about is what you think the next relevant questions are that you're looking forward to say, well, we're going to be talking about this next and then we're going to be talking about this. What doors have opened here?

Lisa Hager:
Yeah. I think the biggest door that got opened is this question of exactly what is an official versus an unofficial act.

And I think the Supreme Court starts to answer that question to a certain extent in the Trump of United States case if you read it. Not that I'm expecting most anyone to have read it thoroughly at this point. I am planning on assigning it to my students and we'll have quite a bit of time to dive into it.

But I think that's really going to be the biggest question. Especially when we start looking at some of these cases that Trump is currently involved with. So things like the hush money case, for instance, the retention of classified documents, all of those things are going to be re-casted. They're going to be delayed because of this particular decision. And so we need to be looking at how lower courts actually start determining what is an official and unofficial act.

And my gut reaction is we'll probably see some things actually continuing to reach the Supreme Court on this to get a more definitive answer. Although I think the Supreme Court does a pretty good job of signaling that quite a bit is considered an official act. So we'll just have to see what the lower courts do. I would say that's probably the biggest thing at this point with this particular case.

Lori Walsh:
So one of the concerns, regardless of which one of these epic presidents you're supportive of, or maybe you're disgusted with all of them, but one of the things that's really concerned South Dakotans is just how often something feels like a political attack. And then people are also concerned you don't want impeachment every other day because you're just trying to slow down the works, for example. That's huge hyperbole, but you see what I'm getting at there.

But you also cannot imagine in this country or president, the one that is in the White House now, Joe Biden or the one that might be there in the future, whoever that is, just having the ability to say, well, look what we can do. Now, Americans don't like the president being above the law. Did the Supreme Court just decide that the president is above the law?

Lisa Hager:
I would probably say no. I can see why some people have that interpretation given some of the things that get said in terms of if we're really kind of looking at when the president would be assumed to mostly have immunity and the discussion of, well, they can move forward with a criminal prosecution if it would pose no dangers of intrusion on the authority and functions of the executive branch.

And what that means in terms of Congress really not having a lot of opportunity to put any really regulations in place with respect to the presidency because that could be a separation of powers violation.

And so there are a lot of folks who start to feel like, well, then how do we reign in presidents? And I think that's where we get ourselves to these Supreme Court cases where they really have to tell us what the bounds of Article II are. And they somewhat did that here, but not as clearly as I think some folks would like.

And so I think that is where we get that tendency to run to the extremes of, well, it seems like so much would be allowed, but I think they're also trying to be restrained in the sense that we do have impeachment, and that's probably one of the better ways for dealing with any sorts of issues with the president, not so much the civil justice system or the criminal justice system.

Lori Walsh:
At the risk of sounding monumentally naïve about the American political process, I do feel like it's worth saying that we're actually in charge of it in a democracy that we can amend the Constitution and that we can send people to make the laws that represent what we want. We have a lot of power. I know that's complicated and it's really hard to address some of these things, but it's not like it's all happening to us. We're participating in this democracy still, and I think that's worth saying as we head into the Fourth of July.

Lisa Hager:
For sure. And I know that the president is the most significant political figure that we have in the United States, but I think especially since it's an election year, and obviously we have very polarizing candidates, it's one of those things where people just get really wrapped up and who is the president and assumes that everything they do or say they're going to do will happen. Where we do have Congress, granted sometimes they're not the most effective at making legislation, but we do have Congress. We do have the Supreme Court. Yes, I know that that's appointed by the president. We have all these—

Lori Walsh:
I'm sorry I have to jump in, but your point is well taken and we're up against our time post for the day.

Lisa Hager, thank you so much. We'll definitely continue this conversation in the future.

Lori Walsh is the host and senior producer of In the Moment.
Ellen Koester is a producer of In the Moment, SDPB's daily news and culture broadcast.