[INSPRATIONAL MUSIC STING] - We are honored once again to be joined by our good friend John Farmer, university professor at Rutgers University, former Attorney General in the state, and formerly the head of the Eagleton Institute of Politics, where I was proud to graduate from, and also the former dean of Law School at Rutgers.

We have 17 different former titles, John.

- I can't hold a job.

That's been my history.

- Yeah, no, you just keep doing good things.

Hey listen, graphic coming up, Democracy in Danger.

We've been doing this for a couple years now.

It's in danger.

Talk to us about the piece you wrote, was Nixon right after all when Nixon said, "When the president does it, that means it's not illegal."

Connect it to the Supreme Court decision, the current United States Supreme Court decision, as it relates to presidential immunity and what that has to do with democracy being in danger.

Please, John Farmer.

- So for those of you who may or may not remember President Nixon's departure from office, it was over the Watergate scandal.

And infamously at the time, in an interview with journalist David Frost, asked to explain and account for his actions, the former President Nixon, basically said, "Well, if the president does it, it can't be illegal."

At the time, that was greeted with horror by people on both sides of the aisle.

When I read the Supreme Court's decision at the end of the term this year on presidential immunity, in which Chief Justice Roberts basically said that a president acting within his "core functions" as president has absolute immunity, it reminded me of that quote and how far we've come from a situation where there was general agreement that that was an outrageous statement by Nixon to it now being at least partially enshrined in Supreme Court precedent.

What Chief Justice Roberts did in that opinion was basically say that there are a couple zones that give presidential actions immunity.

One is if it's pursuant to his core functions as outlined in the Constitution, like his Commander-in-chief function and his ability to negotiate treaties and engage in foreign affairs, the president enjoys absolute immunity.

With respect to other "official acts" of the president, his immunity is not absolute, but it's presumptive so that it would take a lot to overcome the presumption that the president's actions are immune from any kind of lookback later.

I think giving Chief Justice Roberts his due, I think what he was concerned about frankly was getting to a cycle where the successors in office look back and prosecute their predecessors.

So I think that's what he was trying to avoid, but I think in doing so, he created a lot of confusion and carved out really an area of absolute immunity that is unprecedented.

- So hold on.

Help me understand this.

I remember I back in the day, and you'll appreciate, former United States Congressman Peter Rodino, the Watergate hearings connected to Nixon, he shared judiciary committee, and I remember asking the late congressman why it mattered so much that the Judiciary Committee did its job in the House.

And he said, "Because no one is above the law, including the president of the United States."

Okay, so whether it's Donald Trump, Joe Biden, whomever, does that mean that if a president in office were to have a disagreement with the president of the Senate or the leader of the majority leader of the Senate or of the other party, the House, whatever, and they wanted to have that person, I don't even want to say killed, but do something to that person in the official conduct of their office, they're immune?

I'm confused, John.

- Well, I think that's not clear.

And in fact, the scenario you just- - How could it not be clear?

- I'm sorry?

- How could it not be clear?

- Well, I think there's going to be a lot of litigation now over what constitutes an official act.

If having somebody killed is deemed a private act, then it's not immune.

But obviously, any president who engaged in that conduct would claim that it was an official act.

And so the idea that this decision was going to resolve these questions, I think was shortsighted on their part.

The scenario you outlined was outlined in one of the descending opinions, basically saying exactly that, so what exactly does this mean?

And we're seeing it now in the special prosecutor's attempt to figure out exactly what conduct that President Trump engaged in respect to January 6th would be considered "official," and what conduct, if any, would be considered private and therefore subject to prosecution?

There's going to be a lot of litigation over this and it's going to go on for years.

- John, as the former Attorney General, as the former Dean of Law School at Rutgers, as someone understands law and government, you're not obsessed by politics.

I know I've known you long enough now, you're not that interested in politics.

You're interested in government and government functioning well and the judiciary being fair in the way it metes out justice, if you will.

That being said, why do you think the Supreme...

I understand the rationale you said before because they didn't want, you prosecute that one because he or she was in an election with you.

Okay.

Why do you really think they did it?

A and B, what do you think it has to do with Donald Trump, who appointed three of those Associate Justices of the Supreme Court who have had a significant role in changing the course of American history?

Please, John.

- Well, there's no question now that the conservatives enjoy a substantial majority in the court.

That's a six to three court now.

And so they're a little bit unmoored from trying to reach agreement with the other side and I think that's very dangerous.

I think the federal government could benefit from having a system of judicial appointment that's like New Jersey's where there's partisan balance.

And so it's always going to be maybe one seat advantage or the other.

And that's worked really well in New Jersey where you have, you know, Democrat governors appointing Republican judges, and it tends to have a moderating influence on everything.

But the reality of the situation is how do you get to be on the Supreme Court no matter what your party?

You get there by being a hard partisan and that's what we have.

And I don't think it's asking an awful lot of human nature to ask people to stop being partisans once they're on the court.

I think it's a partisan decision.

It definitely helps President Trump.

It explicitly took some of the counts out of the indictment, saying that any consultation that he was involved in with the Justice Department, including the consultation about nominating fake slates of electors is now not subject to prosecution.

- Hold on one second.

People may have missed that, that the effort on the part of President Trump and those connected to him to create a slate of fake electors in states that had voted a certain way more specifically for Joe Biden and the electors were then bound, I believe by law, to then cast the vote for Joe Biden, which is the electoral college, these fake elector slates, which is illegal, that that's legal now because the president was in...

He was doing it as a candidate.

- So the Chief Justice Roberts's opinion basically singles out those consultations with the Justice Department are a core function of the president and therefore, he can't be prosecuted for those consultations.

And so it takes away those counts of the indictment.

They're out and it was a, I think a pretty significant overreach in my opinion.

- Listen, the rigging of the election, we ask all kinds of people who come on, people running for governor, US Senate, other offices, people in office, did Joe Biden win the election legally?

Is he a legally elected president, and did Donald Trump lose?

We get all kinds of answers, believe it or not.

- Really?

(laughs) - Yeah.

Yeah.

Yeah, no, we do.

That being said, you said, "You know, it'd be really hard to rig an election," because many will say the election was rigged, particularly supporters of the former president Donald Trump.

You said, "rig an election?

", what does it take to "rig" an election, John?

- Well, first of all, we have a federated system of elections.

So they're each run at the state level and largely by volunteer.

- Ironically means state run.

It doesn't mean federal run, it means the federalist system is the state run system.

Go ahead.

- It's federated so that the states each have authority to run the elections and they differ slightly in every state in the way that they conduct the elections.

And most of the work is done by volunteers, by your neighbors.

I mean, you would have to have a conspiracy so vast in order to rig an election nationally.

It's simply not credible, and frankly, you know, speaking just personally here, these attempts to undermine the integrity of our election system are one of the most dangerous aspects of the threat to democracy.

Because once we stop believing in the fairness of our elections, what's your alternative but January 6th.

And that to me is really irresponsible.

I was involved in some of the lawsuits after the 2020 election.

There was nothing there.

You had situations where the crowd outside were saying, "Stop the steal," and the lawyers inside the court and were saying, "We don't have any evidence."

I mean, it was a cynical- - You mean the Trump lawyers?

- Yes.

Yeah.

- We don't have evidence.

And what did the 60 plus courts, some of whom were led by judges appointed by the former President Donald Trump.

And for those of you who think that we're being unfair to the president, these are not opinions, they're facts.

What did the 60 plus- - They were dismissed.

- Dismissed?

- There was one lawsuit that went to some kind of settlement in Pennsylvania that was very minor.

The other lawsuits came to nothing.

And look, several of the lawyers who brought those lawsuits are being disciplined now by their state bar associations for having committed unethical acts and filed frivolous complaints.

- Why does January 6th still matter so much to us?

We're taping this toward the back end of September 2024.

There's a presidential election coming up on November 5th.

This will be seen before and after.

Why does January 6th, 2021 matter so much?

- Well, I can just speak personally.

It was shocking to see American citizens smashing windows of the Capitol and forcing their way in in an attempt to block the peaceful transfer of power.

Never thought I'd see that happen in our country and hopefully it never happens again.

Although, you know, the same efforts now are underway to say, you know, that there's phantom voting, that the results are unreliable.

And it's almost like they're preparing the ground for a defeat they can challenge.

- I hope you're wrong, John.

- I hope I am too.

- You worried?

- Yes, I am worried.

I mean, look, there's a climate of rhetoric really on both sides, that if the other side wins, it's a disaster for our country.

That's new in American political history, I guess as recently as 2008.

I don't know if you remember the scene with John McCain when some woman was trying to say that Obama was evil.

McCain says, "No, no, he's not.

We have differences of opinion.

He's not evil."

- He's an American.

- That level of understanding.

- Civility.

Civility, John.

- Civility, it seems to have disappeared and we really need to find a way to restore it or I'll remain worried.

- Hey, John, we'll continue having you on because every time you join us, you challenge my thinking.

You provide new insight and perspective, and I know you do that for our audience as well.

John, I want to thank you so much for joining us.

We appreciate it.

- Thanks for having me.

- I'm Steve Adubato, that is John Farmer.

Worth listening to.

See you next time.

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