My guests tonight-- oh, I love them so much.
They're law professors and constitutional experts--
elitist-- who co-host a podcast about the Supreme Court
called Strict Scrutiny.
Please welcome to the program Melissa Murray and Kate
Shaw, please.
[upbeat music]
[applause]
Let me first--
I want to apologize.
So you have a third, Leah Litman,
who couldn't be here because of the delicate configurations
of our desk.
We would have loved to have Leah be here as well.
But she's in California.
And so I didn't want to let that pass.
I want to start with you guys, a simple question.
John Oliver has offered Clarence Thomas a Winnebago
and a million dollars a year to--
and this is his words, not mine-- get the [bleep]
off the Supreme Court.
Will-- and you're court watchers,
you're experts on the Supreme Court.
Will he accept this offer?
I think this is a Harlan Crow counteroffer opportunity.
JON STEWART: You believe that his benefactor
is going to have to counter.
But what do you counter with?
It's a beautiful Winnebago and a million dollars a year.
Is there anything else to life?
Not if you enjoy spending time
in the parking lots of Walmart, as Justice Thomas suggests.
JON STEWART: He says he does.
But apparently, he likes to quail hunt in a robe.
I want to ask you, there's a strategy
that's starting to bubble up, which is getting Americans
comfortable with authoritarianism
and getting us to not think critically
about the differences between a free society
and not a free society.
And in that regard, they are starting to paint Trump
as Navalny, that the trials that he is facing in America
are similar or the same as what Putin did to Navalny.
Please explain to me why that's horseshit.
[laughter]
Well, we are not experts in Russian criminal procedure.
But I think it's safe to say that Donald Trump is likely
receiving more procedural protections right
now, in the four criminal indictments
that he is currently subject to, than Alexei Navalny had
in his time in Russia.
So I think this is not the same situation.
Would you say that Donald Trump
has actually received duer process than most people
in America?
I mean, this guy is clearly on the platinum due-process plan.
He--
MELISSA MURRAY: The Harlan Crow due process.
The Harlan Crow due process.
He's getting every-- - The duest of process.
The duest of processes.
Literally, yeah.
So how is this even comparable?
It's not at all comparable.
And I do think it is interesting,
as your last segment made clear, that Trump is
adverting to the situation in Russia right now
and invoking Navalny.
And I think that it's right to draw comparisons right now.
But of course, the casting is all wrong.
Right now, in the arguments that Trump is making in some
of the pending criminal cases against him,
he is essentially casting himself
as above and beyond the law.
And we're essentially seeing what kind of state--
Presidents should have complete and total
immunity because if you can't kill people, then what fun?
Well, this was actually a hypothetical that
came up in the lower federal court argument
in this immunity case.
Trump's lawyer was asked, So you're saying that a president
could order Seal Team 6 to assassinate a political rival
and the criminal law couldn't get him for that?
MELISSA MURRAY: Sounds familiar.
JON STEWART: It does.
It was-- and Trump's lawyer basically said,
unless he's been impeached and convicted first,
the criminal laws--
JON STEWART: By the Senate in a political process?
Right, so you have to--
JON STEWART: So our criminal laws are
suspended for the president.
Didn't we fight a war about that?
Well, we not only fought a war,
but our whole constitutional structure
is designed to prevent consolidations of power
within the presidency--
JON STEWART: Checks and balances.
Exactly.
And so this whole idea--
[cheering]
You got you got an A in our constitutional law
classes, Jon. - A-plus in con law.
But I mean, what Kate was describing
is essentially very authoritarian forward.
I mean, the person that Donald Trump is not Alexei Navalny.
It's Vladimir Putin. JON STEWART: Right.
And that's who he wants to be.
That's who he admires.
But in our judicial system's defense, in my mind,
over these past few years, it was
one of the few institutions in America
that actually held pretty strong.
And you are frowning at me.
You disagree with this.
Well, on our podcast, we take different roles.
Kate is, I think, much more amenable to your position.
I think I think--
Hold on one second.
Let me talk to Kate.
Yeah.
Well, explain.
There's something to this.
I do think that there is a way in which courts really did
stand as a bulwark against some of Trump's worst instincts
and impulses while he was in office and even since--
60-plus lawsuits he filed around the 2020 election,
all unsuccessful.
Right.
He argued for different versions of immunity
in civil and criminal cases previously.
Those have been unsuccessful, essentially, throughout.
But we are in a real test moment of that proposition
in that the Supreme Court is, right now, facing
this question of whether he will ever stand trial
for the January 6 events.
And I don't know--
If we grant him blanket immunity,
we don't have a republic anymore.
We don't have a constitutional republic if the head of it
has immunity.
The thing I liked about what the courts did
is, they set a standard of evidence.
Anybody can say whatever they want on a basic-cable show
or wherever they go or at a rally or anything else.
But when you bring it into a court,
as Giuliani famously said, no, we don't have any evidence.
But we got lots of theories.
And they threw him out.
OK, so that just suggests that the bar is in hell.
Right?
[laughter]
Yes, of course the courts are a bulwark
against the most totalitarian impulses in our society.
But we forget that the court system we have,
the Supreme Court we have, the debates we're having about
the Supreme Court, are all, right now, the product
of what Donald Trump did.
This is a person who was not elected by the popular--
You're saying these questions would
have been utterly unimaginable in previous times.
We are, right now, debating whether or not,
in the next presidential term, we are going to see
a national ban on abortion.
We wouldn't be having that discussion if Donald Trump's
6-3 conservative super majority had not
rolled back Roe versus Wade.
We wouldn't have that discussion at all.
JON STEWART: Right.
Or the immunity discussion or anything else.
All of this.
He has created the conditions for the way
we talk about this Court.
And that's the thing that ultimately
is at stake in all of this.
I want to thank you guys so much for coming on.
You're fabulous.
Check out their podcast, please, Strict Scrutiny.
New episodes drop on Mondays.
To That's a day to drop them.
Melissa Murray and Kate Shaw.