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A federal appeals court says former President Trump is not above the law

STEVE INSKEEP, HOST:

In the words of a federal appeals court, President Trump is now citizen Trump. He does not enjoy absolute immunity from criminal prosecution, which is what the former president had demanded in court. The appeals judges declined to block Trump's impending trial for his effort to overturn his 2020 election defeat. They say he can use the same tools in his defense as anybody else. All this comes as Trump heads toward the Republican presidential nomination.

Stephen Gillers is following all of this. He is a professor emeritus at New York University Law School, which makes him a perfect person to help us work through this ruling. Mr. Gillers, good morning.

STEPHEN GILLERS: Good morning.

INSKEEP: What did you make of this opinion?

GILLERS: I thought it was great. It was tight. It referred to authorities going back a quarter of a millennium, from the founding all the way to last year. It covered every claim that the president - former president has made and shot them down.

INSKEEP: The fundamental argument that Trump made, at least in public, for his own immunity is that every president will now be prosecuted if he is prosecuted. Did the appeals court deal with that at all?

GILLERS: Yes, it did. Well, first of all, it's never happened since the creation of the Republic. So that's remarkable that presidents don't do that, or - although in Trump's view, they could and would. Second, they - the appeals court said quite clearly that accepting Trump's argument would be, and I'm quoting, "an unprecedented assault on the structure of our government," close quote.

INSKEEP: Is the fundamental idea here simply that nobody is above the law?

GILLERS: That is the fundamental idea. Trump's argument would have made him nearly above the law. He argued that he could not be prosecuted unless he were first impeached and convicted. That argument was fallacious, and the court rejected it.

INSKEEP: With that said, hasn't there always been a lot of deliberate ambiguity around the presidency? We seem to want a president to be able to do whatever is necessary to defend the country. And so it's just kind of - the system is not necessarily too strict on a president. Has that not been the case over the years?

GILLERS: There - less than ambiguity, there has been rather certainty that the president is the executive branch and is the power at the executive branch. He has all of the power of the executive branch. But that doesn't mean that he is not subject to review by the courts or to legislation.

INSKEEP: OK, so let me sort this through. Trump was supposed to go on trial weeks from now. That's already been delayed by this case. The appeals court has ruled, but it appears that it now goes to the Supreme Court. How does that work, and on what timeline?

GILLERS: Right. Well, I'm glad you asked that. What happens is that Trump has to seek the stay from the Supreme Court by Monday and eventually file a petition for review in the Supreme Court. If the stay is granted, Judge Chutkan has to wait some time longer before she can try her case. But the stay should not be granted.

Lost in all of this are two interests - the public's interest in hearing the special prosecutor's proof and the interest, believe it or not, of the Republican Party of knowing whether in July it will be nominating a person who has been convicted of a felony. It wants to know that sooner rather than later.

INSKEEP: Just to understand the mechanics here, is this correct? The Supreme Court could say, we decline to hear this case, which effectively means we affirm it. We're doing nothing about it. The appeals court is the final decision here.

GILLERS: The Supreme Court could say on Monday or in the following week, we reject the stay - end of matter. Or it could entertain a certiorari petition, leaving the stay in effect, and then reject the certiorari position or grant the certiorari position and wait for an argument and briefing, all of which can push the case in - well into the summer or even the fall.

INSKEEP: OK, I think maybe not everybody followed every detail of that, but the part about the case being pushed into the summer or the fall is certainly something that people can follow. Just from your outside observation, do you have any suspicion that there may be justices on the Supreme Court who would like themselves to weigh in on this and to take the time to do it?

GILLERS: Well, that's where the crunch is. The court, understandably, might see this as an intellectually challenging case. The court might see that the case deserves the review by the highest court in the land, with a kind of judicial pride going on, and that's the danger. The court has to subordinate that eagerness to try the case and issue its own opinion to the interest of the public, and knowing the special prosecutor's evidence and the interest of the Republican Party in knowing whether Trump is going to wind up a convicted felon.

INSKEEP: In a few seconds, is there a political interest in having the court weigh in? Because a fraction of the country, a minority of the country, thinks this is all wrong, thinks the decision is otherwise, and maybe the Supreme Court should weigh in.

GILLERS: No, there's not a political interest. The decision should be made based on the traditional criteria for grants of certiorari and stays of enforcement only. And those all point toward rejecting a stay within a week or so...

INSKEEP: OK.

GILLERS: ...After a respectable amount of time.

INSKEEP: All right. Stephen Gillers of NYU, thanks so much.

GILLERS: OK. Take care. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

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