ZEIT ONLINE: In reference to his incendiary speech on January 6, 2021, and the conspiracy charge, Donald Trump has invoked the First Amendment, his right to free speech. Was the call to his supporters to march on the Capitol and prevent what he saw as a rigged election covered by this constitutional right?

Tribe: No, it’s not simply about giving an incendiary speech. Trump wanted to remain president at all costs. The criminal charge is that he conspired to organize false slates of fraudulent electors who were in fact not certified by the Electoral College. In other words: the deliberate falsification of electoral slates is at the heart of this accusation. The fact that Trump didn’t succeed and therefore tried to incite violence is only the icing on the cake.

ZEIT ONLINE: In the name of national security, an American president can order the military to go to war, for example. As such, the president has very far-reaching rights, even for measures that may later turn out to be unlawful. Shouldn't a president therefore, generally speaking, enjoy immunity from prosecution?

Tribe: No, that would be akin to throwing the baby out with the bathwater. The basic principle is that if a president commits crimes, he will eventually be held accountable. Nonetheless, there’s a very small sliver of presidential activities, perhaps involving the way in which a legitimate war is conducted, that will in hindsight turn out to have crossed the line. In such cases, a president ought to be subject to some kind of qualified immunity. But Trump’s attempt to prevent the transfer of power after it has been officially certified that he has to vacate the Oval Office cannot possibly be deemed immune from prosecution.

ZEIT ONLINE: Trump's lawyers argue that a president who does not enjoy absolute immunity would not be able to fully exercise his office due to the constant threat of criminal charges. Isn’t that a dilemma?

Tribe: No. Starting with George Washington and going all the way up to Barack Obama, we have had presidents who certainly knew that they would not have absolute immunity. President Nixon, who was facing impeachment because of the Watergate scandal and resigned, would not have needed the pardon of his successor Gerald Ford if there hadn’t been an assumption that presidents can be criminally prosecuted after they’re out of office. So far, all presidents have governed effectively despite the shadow of knowing that if they dcommit crimes, they will be held accountable. This shadow is important and should be kept in place. It would be fatal to replace it with a green light, saying: "Go ahead, you’re the president, you can do whatever you want."

ZEIT ONLINE: The Supreme Court is notorious for its often hotly contested decisions. Nevertheless, both liberal and conservative justices nominated by the president have usually been confirmed by a broad majority in the Senate. These days, though, candidates can be happy if they are supported by the narrowest of majorities. Why is that?

Tribe: It seems to me that especially the Republican Party has waged a very successful half-century long campaign to stack the court with people who lean in their direction. But it is the entire history of the Supreme Court that we need to look at. Really from the beginning, certainly around the time of the Civil War and shortly thereafter, our Supreme Court has not been an ally of the rights of minorities and the democratic process. This is reflected in the decisions narrowing the right to vote, overturning Civil Rights legislation or limiting it in various ways. Frankly, our Supreme Court doesn’t deserve to be on this high pedestal. On the other hand, we need a highest court whose word will be taken seriously, otherwise there’s no rule of law and chaos governs. So we’re stuck in a dilemma, and that is why I think we can lament the way in which our current Supreme Court has undermined its own credibility.

ZEIT ONLINE: When a federal judge makes a ruling today, it is almost always mentioned whether he or she was appointed by the Democrats or the Republicans. Given that reality, how independent can the judiciary really be?

Tribe: We have to try. And we do have judges, including some who have been appointed by Donald Trump, who have ruled against him in his efforts to overturn the election. I’m still confident that it is possible to have an independent judiciary with integrity.

ZEIT ONLINE: One of the conservative justices, Clarence Thomas, is married to a far-right activist who pressed the Trump White House and lawmakers to overturn Joe Biden’s 2020 victory and attended then-President Trump’s "Stop the Steal" rally on the morning of the Capitol attack. Should Thomas not have recused himself from the case?

Tribe: It is quite disgraceful that he has not. The facts you recite are more than enough to lead at least to an appearance of bias. There is also a statute that says that a judge or Supreme Court justice must recuse in a case like this where the spouse has an interest in the case. But unfortunately, there’s no enforcement mechanism.