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The Lawfare Podcast: Trump’s Presidential Immunity Defense with Saraphin Dhanani and Benjamin Wittes

Tyler McBrien, Saraphin Dhanani, Benjamin Wittes, Jen Patja
Monday, September 18, 2023, 8:00 AM
Is it likely that Trump could succeed in getting the Jan. 6 case against him dismissed based on presidential immunity? 

Published by The Lawfare Institute
in Cooperation With

Some time soon, former President Donald Trump is expected to file a motion in U.S. District Judge Tanya Chutkan’s courtroom to dismiss the Jan. 6 case against him based on some theory of presidential immunity. In a recent piece for Lawfare, our very own Legal Fellow Saraphin Dhanani and Editor-in-Chief Benjamin Wittes write, “The bottom line is that this defense is a bit of a moon shot for Trump, but it’s not a crazy moon shot.”

Lawfare Managing Editor Tyler McBrien sat down with Saraphin and Ben to talk through their article, “The Trump Defense, Part II: The Presidential Immunity Gambit.” They discussed the general contours of the defense’s argument and strategy, the prosecution’s likely counterarguments, and all the murkiness and unknowns in between. They also talked about how, even if Judge Chutkan does not accept Trump’s immunity defense—and even if the appellate courts ultimately affirm her judgment on that score—the immunity defense could still be useful to the former president. 

Tyler McBrien is the managing editor of Lawfare. He previously worked as an editor with the Council on Foreign Relations and a Princeton in Africa Fellow with Equal Education in South Africa, and holds an MA in international relations from the University of Chicago.
Saraphin Dhanani is the Legal Fellow at the Lawfare Institute. She previously worked at the Estonian Ministry of Foreign Affairs for the Ambassador for Human Rights and in the Markets Group at the Federal Reserve Bank of New York. She holds a B.A. from Wellesley College, where she was a Fellow and Ambassador at the Madeleine Korbel Albright Institute, and a J.D. from Stanford Law School, where she was the Senior Articles Editor of the Stanford Law Review.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
Jen Patja is the editor and producer of The Lawfare Podcast and Rational Security. She currently serves as the Co-Executive Director of Virginia Civics, a nonprofit organization that empowers the next generation of leaders in Virginia by promoting constitutional literacy, critical thinking, and civic engagement. She is the former Deputy Director of the Robert H. Smith Center for the Constitution at James Madison's Montpelier and has been a freelance editor for over 20 years.