Is the Supreme Court about to hand Donald Trump another legal lifeline?
Today, after three hours of arguments before the justices, that scenario at least seemed possible. The court’s conservative majority — which Trump himself helped to create — signaled that it was leaning toward narrowing the scope of the criminal case in which he stands accused of plotting to subvert the 2020 election.
The dramatic hearing concerned what many legal experts have always thought was a long-shot defense against the election interference case: that Trump is completely immune from prosecution on the charges because they arose from actions he took while he was president.
While the court did not appear to buy those sweeping claims in their entirety, it did seem interested in the notion that presidents should enjoy some form of immunity. Over and over, the justices circled around the idea that presidents probably were protected from prosecution for actions central to how they carried out their jobs, but likely could face charges for conduct that was private in nature. Extending even limited immunity from criminal prosecution to presidents would be a historic ruling from the court.
So how would all of this affect Trump?
From the start of the election interference case, federal prosecutors — led by the special counsel Jack Smith — have argued that Trump was acting not in his public role as an officeholder, but rather in his private role as an office seeker, when he undertook an array of schemes to illegally stay in power.
Smith’s indictment, for example, claims that Trump the candidate enlisted the Justice Department in validating his claims that the election was marred by widespread fraud. And it documented how he waged a pressure campaign against his own vice president, Mike Pence, to block or delay certification of President Biden’s victory during a proceeding at the Capitol on Jan. 6, 2021.
Trump’s lawyers, however, have described these actions very differently. The lawyers say that all of them were steps taken by Trump to ensure the “integrity” of the election and for that reason, they sat “at the heart” of his “official responsibilities as president.”
It now seems that the court is going to dive directly into the issue of which allegations in the indictment were official acts that are off-limits for prosecutors and which are private acts that can be part of the criminal case.
Depending on how the justices rule, it could mean that some of the charges Trump is facing could be stripped from his indictment — particularly those that have a gloss of officialdom to them. Say, the charges accusing Trump of trying to get top Justice Department officials to go along with his claims of widespread fraud.
This process of analyzing what is official and what is public could also be sent back to a federal appeals court or the trial judge in Washington to sort out in a process that could take months to complete. And if that happens, it would all but kill the possibility of Trump being tried on charges of plotting to overturn the last election before voters go to the polls to decide whether to choose him as the president in this election.
In court
Trump himself was not at the Supreme Court hearing today. He had other obligations. He was in court in Manhattan where he is being tried on separate charges linked to his efforts to influence the 2016 election.
In that case, Trump stands accused of falsifying business records to cover up a hush money payment he made to a porn star, Stormy Daniels, on the eve of the 2016 race. Daniels was threatening to go public with a story about a sexual encounter she claims she had with Trump and prosecutors say he paid her off to purchase her silence.
Today, David Pecker, the former publisher of the National Enquirer, told the jury how he first learned about Daniels shopping around her salacious tale about Trump in October 2016, — right after the infamous “Access Hollywood” tape was made public by the Washington Post. Pecker, whose magazine had already bought and buried two other lurid stories on Trump’s behalf, testified that he rebuffed a request from Trump’s personal lawyer at the time, Michael Cohen, to have the Enquirer’s parent company buy her story, and instead suggested that Cohen should make a deal with Daniels directly.
And in the end, that’s what happened: Daniels got $130,000 in exchange for keeping her mouth shut.
Your questions
We’re asking readers what they’d like to know about the Trump cases: the charges, the procedure, the important players or anything else. You can send us your question by filling out this form.
Will we get to the documents at Mar-a-Lago case before the election? — Dee Pearce, Orinda, California
Alan: That’s a hard question to answer with certainty, given that the judge overseeing that case, Aileen Cannon, hasn’t yet made a number of crucial legal rulings that will directly affect the issue of timing. That said, the backlog of unresolved decisions Judge Cannon has allowed to pile up on her desk makes it increasingly unlikely that the case will go to trial before voters go to the polls.
What else to watch
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We’re still waiting for several key rulings in Trump’s classified documents case in Florida — chiefly a ruling by Judge Cannon about when the trial will start. Before that, however, she will likely have to make decisions on Trump’s request for more discovery information and about delaying a key filing on the handling of classified materials at trial, both of which could come at any time.
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The judge overseeing Trump’s Manhattan trial is expected to rule soon on whether Trump has violated his gag order barring attacks on witnesses, prosecutors and jurors involved in the case. The judge could hold the former president in contempt and issue a fine of $10,000 or more.
Where does each criminal case stand?
Trump is at the center of at least four separate criminal investigations, at both the state and federal levels, into matters related to his business and political careers. Here is where each case stands.