In Trump v. United States, the US Supreme Court set up a three tiered system for examining claims of Presidential immunity. The first tier are acts within the President’s constitutionally mandated authority which are subject to “absolute immunity.” The next are acts that may have “presumptive immunity,” and are subject to examination with evidence that rebuts the presumption of immunity. The third are acts which are unofficial, and which enjoy no immunity.
That case involved the indictment brought by Jack Smith in Washington DC federal District Court, which sought to criminalize former President Trump’s efforts to combat potential voter fraud in the 2020 Presidential election, and his actions on January 6, 2021. The Court found that Donald Trump’s conversations with the US Attorney General and other Justice Department officials were subject to absolute immunity, but his efforts to convince Vice President Mike Pence to delay certification of the election results may be subject to only a presumption of immunity. Further, Trump’s comments and speech on January 6th may have been made in his capacity as a candidate for office, and not in his official capacity as President. Therefore, the case was returned to District Court Judge Tanya Chutkin to determine which acts were official, which were not, and whether the presumption of immunity can be rebutted by Jack Smith’s prosecutors.
While we await the DC District Court’s evaluation, the Supreme Court’s decision has opened another door for the Trump defense team. Building upon the ruling in Trump v. United States, a motion to reverse the verdict in New York County Supreme Court, Criminal Term, has been filed with the trial judge, Juan Merchan.
As we recently testified before the House Judiciary Committee’s Subcommittee on the Weaponization of the Federal Government, “[b]ased on my experience, I can tell you in no uncertain terms that former President Trump did not receive a fair trial from Judge Juan Merchan. In fact…Donald Trump’s conviction is assured reversal, a reversal that will be premised upon the fundamental errors committed by Judge Juan Merchan. If I may be blunt – Donald Trump was railroaded, and Juan Merchan was the driver of that train.”
Our statement outlined the most significant errors committed by Judge Merchan, but we also mentioned that there were other mistakes which could lead an appellate court to reverse Donald Trump’s conviction. Now, using the language contained in the Supreme Court’s opinion, another avenue has opened up which may lead to Judge Merchan reversing the conviction himself.
Significant to our analysis here is the statement made by Chief Justice Roberts in his majority opinion in the Presidential Immunity case; “Presidents cannot be indicted based on conduct for which they are immune from prosecution. On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct. Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.”
The Court notes that “[t]he government…contends that a jury could ‘consider’ evidence concerning the President’s official acts ‘for limited and specified purposes,’ and that such evidence would ‘be admissible.'” In rejecting that argument, Chief Justice Roberts states “[t]hat proposal threatens to eviscerate the immunity we have recognized. It would permit a prosecutor to do indirectly what he cannot do directly – invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge.”
The Chief Justice explains the basis for this ruling. “If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the ‘intended effect’ of immunity would be defeated…[t]he President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. Use of evidence about such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the President’s official decision making will be distorted.”
Judge John H. Wilson’s article concludes tomorrow
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