What effect does the Supreme Court’s presidential immunity ruling have on Donald Trump’s New York criminal case? According to a new court filing from Manhattan District Attorney Alvin Bragg’s office, it has “no bearing on this prosecution.”
That may turn out to be so. But let’s consider how the Roberts Court’s ruling, which came after the New York trial, could work mischief on the already secured guilty verdicts in the so-called hush money case. Recall that the high court’s Republican-appointed majority laid out a new, vague test for distinguishing between official acts that are (or can be) immune from prosecution, as opposed to unofficial acts that can be charged.
That’s not the issue in this New York state case, where Trump wasn’t charged with official conduct. Rather, the issue stems from a strange part of the immunity ruling that curbs the government’s use of official-act evidence to prove guilt of private conduct. That raises the question of whether any such official evidence was improperly used to secure the Manhattan verdict — and what to do about it if so.
First, what supposed official evidence from the trial are we talking about here? Prosecutors noted that Trump claimed six types:
(1) testimony from Hope Hicks about events that occurred while she was the White House Communications Director; (2) testimony from [Trump White House aide] Madeleine Westerhout about office process and procedures when she worked in the White House; (3) four Tweets posted to defendant’s personal Twitter account; (4) testimony from [former Trump fixer Michael] Cohen about why he lied to Congress; (5) testimony from Cohen about conversations he had with other third parties about Federal Election Commission (“FEC”) investigations; and (6) defendant’s OGE [Office of Government Ethics] Form 278e.
Prosecutors contend that the evidence didn’t run afoul of the immunity ruling and that “even if some of this evidence were improperly admitted, any error was harmless in light of other overwhelming evidence” of Trump’s guilt and shouldn’t lead to overturning the guilty verdict. Legal errors at criminal trials don’t automatically lead to reversal when there’s otherwise overwhelming evidence of guilt, and prosecutors say that’s the case here (while maintaining that there was no legal problem to begin with). Meanwhile, Trump’s lawyers argue that they should prevail in any harmless-error analysis but that such analysis can’t even apply here because, they say, presidential immunity errors are never harmless.
In a normal case, the prosecution would be on solid footing. And it may yet prevail in defending the Trump verdict despite the immunity ruling. But we’re in a new world after that decision, one in which the Supreme Court majority’s guiding light can seemingly be boiled down to suspicion of prosecutions against former presidents — at least this former president.
In their motion, which was made public Thursday, prosecutors wrote that none of the evidence that Trump objects to “said anything whatsoever about defendant’s presidential policies or political positions.” They further noted that the presiding judge, Juan Merchan, “not only allowed extensive individualized questioning during voir dire to ensure that the jurors were not politically biased, but also carefully instructed the jury not to let their personal or political opinions of defendant affect their consideration of the evidence.”
That’s true. But in the immunity ruling, Chief Justice John Roberts was dismissive of the safeguards that are apparently sufficient to protect any other criminal defendant, writing that tools like evidentiary rulings and jury instructions “are unlikely to protect adequately the President’s constitutional prerogatives.”
Again, perhaps the ruling has “no bearing” on this case, which has already gone to trial and wasn’t premised on Trump’s official conduct. It’s laughable to contemplate that the president’s constitutional prerogatives are at stake in the context of covering up a personal hush money scheme.
But if it’s decided in retrospect that any official-type evidence improperly seeped into Trump’s trial, then prosecutors may be forced to try him all over again. Merchan is expected to rule Sept. 6 and sentence Trump on Sept. 18 if he rejects the defendant’s immunity motion. The judge already had a heavy task in weighing how to sentence the Republican presidential nominee. Now the immunity ruling has added another vague hurdle to get to that point.
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This article was originally published on MSNBC.com
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