This interview originally aired on "In the Moment" on SDPB Radio.
The U.S. Supreme Court will hear arguments on Thursday regarding whether former President Donald Trump can be criminally prosecuted for his alleged efforts to undo the 2020 election.
Lisa Hager, Ph.D., and David Wiltse, Ph.D., are our Dakota Political Junkies and bring their analysis.
We also dive into the massive foreign aid package passed by Congress and the message it sends to U.S. allies around the world.
Hager and Wiltse are associate professors of political science at South Dakota State University.
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The following transcript was auto-generated.
Lori Walsh:
We're going to pivot now, to address a different case the U.S. Supreme Court will hear this week. On Thursday, the court hears a case over whether former President Donald Trump can be criminally prosecuted for his alleged efforts to undo the 2020 election.
Lisa Hager and David Wiltse are associate professors of political science at South Dakota State University, and they are joining us from SDPB's Jeanine Basinger Studio at SDSU.
David Wiltse, welcome. Thanks for being here.
David Wiltse:
Thanks for having me.
Lori Walsh:
Lisa Hager, thanks as well.
Lisa Hager:
Thanks for having us.
Lori Walsh:
Dr. Hager, let's start with you. We have two main topics in front of us today. One, what's happening in the Supreme Court tomorrow, and then we're going to move to Congress and talk about this aid package that addresses Ukraine and Israel.
But first, take me to a Dr. Lisa Hager classroom where the students are wondering what to put into context constitutionally with tomorrow's hearings.
Which, by the way, our programming will be preempted so you can hear them live, right here where you're listening now.
Set up the classroom for us, Lisa.
Lisa Hager:
Yes, definitely. I will say, first off, it's really exciting, at least from the standpoint of teaching, to be able to eventually have something here coming down from the Supreme Court that gets at this issue of the president being involved in criminal prosecutions when it comes time to talk about issues of presidential immunity. Because thus far, when I talk about this issue in the classroom, we're always looking at it in terms of the president being involved in civil cases.
Lori Walsh:
Okay.
Lisa Hager:
Really, when we do talk about that issue, we are looking at both Nixon and Clinton. That's also something that everyone is likely familiar with when we're also always talking about the issue of impeachment with President Trump. Those three presidents get talked about a lot. I will say that this portion of the course has definitely evolved with current events, for sure.
But when we talk about things related to the president being involved in civil cases, we know with President Clinton and Clinton v. Jones, that the Supreme Court determined that the president could be involved in civil cases relating to things that occurred prior to him taking office.
That all had to deal with Paula Jones and what occurred when he was a governor of Arkansas. The whole idea was that she, as a litigant, has the opportunity to have her case disposed of as quickly as possible and that it wouldn't interfere with him being able to conduct his presidential duties.
Then when we look at civil cases relating to official acts of the president, we know from the case of Nixon v. Fitzgerald that the president is entitled to immunity for any legal liability that occurs based on official acts.
We don't have anything that tells us much with respect to criminal prosecutions, so that's what the court is going to be able to clear up for us, because the court has never put anything else into their decisions, nor would we expect them to, relating to criminal charges in a case about civil liability.
Lori Walsh:
Yeah. Dave Wiltse, the court has never had to answer this question. What would you add to what Dr. Hager just said that you think is essential for us to understand before we listen tomorrow?
David Wiltse:
Well, the obvious answer to why they've never had to hear this kind of case is most presidents aren't involved with this kind of alleged behavior to begin with.
We really are on brand new ground here. Some of the civil liability stuff obviously is related to it, but we're talking about a very important step from civil liability to criminal liability. There are a lot of theories that are kicked around. Obviously, the Trump team and Trump himself really rely upon some of the things Nixon was articulating after he left office on just a broad, general presidential immunity for virtually anything that he does before or during his administration.
But that kind of broad grant of immunity is not common in most democracies. I would at least hope that, on just a normative basis, on a general sense of no president, no public servant is above the law, the Supreme Court won't just dismiss this out of hand.
Lori Walsh:
Yeah.
David Wiltse:
That's my big fear, but this is Lisa's show because this is right up her alley.
Lori Walsh:
Lisa, President Nixon was famously pardoned by President Ford, which would imply to some people that that pardon was necessary.
Lisa Hager:
Right, yeah.
Lori Walsh:
Was it necessary to just avoid it? We were trying to avoid having to decide it? Or does that matter in saying, "Hey, that was done because..." Do you know what I'm asking here?
Lisa Hager:
Yeah. I think why we don't have an answer is because Nixon was pardoned and he left office before anything could actually come down the pike. I think that's why we're in the situation that we're currently and I think Dave is correct. We normally don't see presidents engaging in behavior that would get us into this situation. The one time we have something like that occurring, we have a pardon.
This is really unprecedented.
As a constitutional law professor, it's very interesting to have some of these questions getting answered by the court, regardless of what it means for our democracy. Because a lot of times, I have students asking me this question, "Well, what about anything that happens criminally?" I'm like, "We don't have an answer from the Supreme Court."
David Wiltse:
That was one of the worst outcomes of Ford's pardon. I understand where he was coming from politically, it was a very divisive time, he wanted to put all that stuff to bed just in terms of the political chaos it would have caused. But these are really important constitutional questions that need to be answered.
Lori Walsh:
Do we have any indication, historically, if Ford was pardoning Nixon because he just wanted to do the politically healing act? Or was he pardoning Nixon because — you wouldn't issue a pardon if you thought there was supreme immunity to crime.
David Wiltse:
Oh, exactly. That's the case that people are making. But we're all impugning this, right?
Lori Walsh:
Okay.
David Wiltse:
Because the question was cut short, it never had to be answered by the court.
Lori Walsh:
All right. Lisa, what if there is a leak of the opinion? When we get into the politics of this—
Lisa Hager:
Oh, please.
David Wiltse:
Don't even go there.
Lisa Hager:
Oh my gosh.
Lori Walsh:
There are of course questions about Justice Thomas and his wife's, Ginni, involvement. We looked at this famous leak with the Dobbs decision, to where the very structure of the court and the integrity of the court are also on display now. How important is it that this whole thing goes incredibly well, whatever the decision is, but that the process has to hold? What are you watching for?
Lisa Hager:
I'm just going to assume that the process will hold, that's my hope. I guess I don't have an indication one way or another to make me think that it won't. Obviously, we could go back and look at what happened with Dobbs, but I would still say nothing ultimately changed with the leak of the Dobbs decision.
Lori Walsh:
Right.
Lisa Hager:
I do think that we ultimately still had them overturn Roe v. Wade, so I don't expect that to be a strategy that would be overly effective with this particular case, other than that it would just release chaos earlier rather than later, which obviously gets into the election that's coming up.
Lori Walsh:
Right.
Lisa Hager:
I guess I haven't even really thought that much about it, I'm just spitballing here.
David Wiltse:
Yeah. We don't know who did the leaking in the Dobbs case. We don't know why exactly they did it. There are all these theories surrounding it that it was an abortion opponent who was trying to ossify the court in a very extreme position and not give Roberts the kind of flexibility to negotiate it down and soften it a little bit. Who knows?
Lisa Hager:
Right.
Lori Walsh:
Yeah.
David Wiltse:
This is literally the first time I've even thought that something like that could happen in this case.
Lisa Hager:
Yeah, I really didn't at all. No.
Lori Walsh:
You're welcome.
David Wiltse:
Yeah, thanks.
Lori Walsh:
From my perspective, the leak created a division and we are in the election year, and this is an incredibly divisive topic. It's an opportunity for people who want to see more chaos in the American dialogue, if nothing else, to step into that space and say, "Here's another way we can get you to not trust what's happening in the courts."
Lisa Hager:
Yeah, there's definitely going to be a judicial institutional legitimacy issue going on, depending on what the decision is.
Depending on which way the decision goes and who's weighing in on the decision, but then also yeah, this issue of secrecy being broken and what that means for the election.
Lori Walsh:
But they're not deciding whether or not Donald Trump did interfere, they're deciding whether or not what exactly, Lisa?
Lisa Hager:
Right. Oh, yeah. I'm just saying I think the minute there's a decision that's handed down on this immunity issue, I think then people are going to start to think about what that means in terms of the election, if a prosecution's able to go forward or it can't, or what they think about the president even being involved in the situation in the first place. I think there's going to be more chaos if they say that he does not have immunity and it's able to go forward, and people know that sooner rather than later.
Lori Walsh:
Okay. Let's pivot real quick to the foreign aid bill that the House has passed for Israel, Ukraine and Taiwan. Dave Wiltse, tell us a little bit about the significance of this decision.
David Wiltse:
Well, this is part of a pattern that we're seeing in Congress where we see all these things as bundled together. We're at a point now where everything seems to be a grand negotiation, whereas 15, 20 years ago, these sorts of things, these kinds of appropriations could go one by one. But we see this rise in omnibus bills and these sorts of things.
But politically, it's really important in terms of just the United States' position of leadership in the world. This failure to act on behalf of a country that is facing an invasion from a hostile power in the world, one that we are, like it or not, in an adversarial relationship with, really was destabilizing. It really was eroding our position as a leader in the world order right now. Johnson and the rest of the House that voted for this did a big service for our standing on the world stage.
Lori Walsh:
President Biden also says his support and his commitment to Israel is ironclad. How important, Dave, is the aid package to Israel? It also includes $1 billion for humanitarian assistance in Gaza. He continues to put international pressure on Israel, but the death toll in Gaza is rising.
This used to be a simple thing to get through Congress, but now it is more complicated. What is the political moment that President Biden is stepping into here, with the aid to Israel as well?
David Wiltse:
Well, he's walking a tightrope here when it comes to the Israeli-Gaza portion of this bill, no question. He's facing a significant pushback on the left, from people who are quite reasonably, in some ways, questioning his policy position when it comes to pressuring Israel to really be more careful with civilian casualties.
But he also has to walk this line with an important part of his constituency being Jewish Americans that is still an integral part of the Democratic Coalition.
He's playing a really tough coalitional game here, whereas with Republicans, this is a lot safer, this is a lot easier. This is not something that a Republican president would be facing simply because of the traditional position of almost unquestioned support for Israelis in these kinds of situations. This is not over for him.
Lori Walsh:
No. So much to talk about in the future. We're going to wrap it for today, so we can go on and talk about opera. Doesn't that sound nice? But for our Dakota Political Junkies, we're going to say thank you to Professor Lisa Hager and Professor Dave Wiltse, both with South Dakota State University in Brookings.
Lisa, Dave, thanks so much. We'll see you next time.
Lisa Hager:
Thanks, Lori.
David Wiltse:
Thanks.
