L-R: Former President Donald Trump appears at Manhattan criminal court before his trial in New York, Tuesday, May 14, 2024 (Michael M. Santiago/Pool Photo via AP). Trump attorney Stephen Weiss arrives outside of the federal courthouse on Monday, Aug. 28, 2023, in Washington, D.C. following Trump’s indictment for allegedly subverting the 2020 election (AP Photo/Jose Luis Magana). Emil Bove exits the New York State appellate court, Monday, April 8, 2024, in New York (AP Photo/Peter K. Afriyie). Todd Blanche exits the New York State appellate court, Monday, April 8, 2024, in New York (AP Photo/Peter K. Afriyie).
The U.S. Supreme Court decision on presidential immunity is already having an impact on the pending criminal cases against Donald Trump. The former president’s lawyers are trying to apply the ruling in Trump v. United States to the Mar-a-Lago classified documents case. In a 10-page motion, lawyers have asked U.S. District Judge Aileen M. Cannon to allow them to file additional briefings on immunity and to freeze nearly all pretrial activity until she resolves the issue.
“Resolution of these threshold questions is necessary to minimize the adverse consequences to the institution of the presidency arising from this unconstitutional investigation and prosecution,” Trump’s lawyers wrote in the July 5 filing.
The second look proposed by Trump’s legal team was made possible by the Supreme Court’s recent ruling. The high court found “at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.” The Court ruled that the former president has absolute immunity with regard to his discussions with the Department of Justice about leveraging power to have states replace their legitimate electors and investigating sham allegations of election fraud.
The court found that the president is presumptively immune for allegedly “attempt[ing] to pressure the Vice President to take particular acts in connection with his role at the certification proceeding.”
What’s more, the majority of the justices found that Trump’s communication by tweet and public address on Jan. 6 may be protected.
“The president possesses ‘extraordinary power to speak to his fellow citizens and on their behalf,” the decision said. “[T]he President’s] communications are likely to fall comfortably with the outer perimeter of his official responsibilities.”
Trump’s lawyers will likely seek to toss all of the federal charges for subversion of the 2020 election. The Supreme Court has remanded the case to U.S. District Judge Tanya Chutkan to determine which allegations in Smith’s indictment would be barred under the decision, and the justices said that additional briefing will be needed for the trial court to do so.
The portion of Smith’s prosecution dealing with scheming with the Department of Justice to pressure Georgia to investigate the election is dead in the water. Trump’s team will use the court’s opinion to fight evidence in the case still standing after Chutkan completes her analysis — like meetings Trump had with his top advisers and Vice President Mike Pence.
Some portion of the fake electors case might survive the court’s scrutiny and also the classified documents case which occurred after Trump left the White House.
Smith’s prosecutions have taken a blow, but it’s certainly not a knockout. However, Trump’s strategy from the beginning in dealing with the various criminal charges was delay. To that end he has been successful. Smith’s prosecutions will not be tried before Election Day, and if Trump ultimately wins in November these cases will go away faster than you can say “President Trump.”
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. and the former District Attorney of Lawrence County, Pennsylvania, His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino
This is an opinion piece. The views expressed in this article are those of just the author.
