Supreme Court immunity fallout to crescendo in September

The fallout over the Supreme Court’s presidential immunity decision will crescendo next month, with judges in two of former President Trump’s four criminal cases set to tackle the implications.

On Sept. 5, U.S. District Judge Tanya Chutkan will weigh how Trump’s federal indictment accusing him of conspiring to subvert the 2020 election should proceed.

And less than two weeks later, New York Supreme Court Acting Justice Juan Merchan will determine whether to toss Trump’s conviction in his hush money case. The case is all but certain to be his only criminal verdict before the election.

Both will test the bounds of one of Trump’s biggest legal victories yet in defending against his criminal prosecutions: the Supreme Court’s ruling last month that carved out at least presumptive immunity for former presidents’ official conduct.

The 6-3 decision left it to Trump’s trial judges to apply the high court’s immunity test to the specifics of his cases.

That battle is poised to dominate his legal entanglements between now and Election Day.

Within hours of the landmark decision in early July, Trump’s attorneys began mounting an effort to set aside his guilty verdict in New York, where he was convicted of falsifying business records stemming from hush money payments to conceal alleged affairs during his 2016 campaign.

The former president has never argued his 34 charges were official acts. But he contends that prosecutors improperly brought in immunized conduct as evidence when presenting their case to the jury during the seven-week trial.

The contested evidence includes witness testimony from two White House aides, Trump’s government ethics form and some of his social media posts sent while in office.

The argument latches on to how five conservative Supreme Court justices agreed that protected acts can’t be used as evidence, even if the charges concern unofficial conduct. Supreme Court Justice Amy Coney Barrett, Trump’s final appointee and member of the conservative majority, didn’t sign on to that portion.

“Judges are very, very, very hesitant to overturn a jury’s verdict, generally speaking,” said Anna Cominsky, the director of New York Law School’s criminal defense clinic. “Obviously, this immunity decision is different, that’s a factor that we don’t always have. But given the hush money case and the majority of the actions being taken before Trump was even president, that leans towards the judge most likely denying that.”

Merchan, Trump’s trial judge, has said he will decide whether the verdict can stand by Sept. 16, just two days before the sentencing.

“Please note, the court appearance scheduled for September 18, 2024, at 10 A.M. remains unchanged,” Merchan emphasized in a letter to both sides’ attorneys earlier this month.

Trump’s lawyers are newly demanding a postponement until after November’s election. Among other rationales, Trump signaled he’ll immediately appeal the immunity claim if his verdict stands.

Cominsky noted the sentencing date might change if Merchan’s immunity decision leaves open questions or changes the calculus for sentencing.

“Both parties have a right to fully prepare and make the arguments at sentencing that they want to make,” Cominsky said.

Trump’s attorneys also noted the Supreme Court’s criticism of the speed of Trump’s federal election subversion prosecution brought by special counsel Jack Smith and how he has since stepped off the gas.

Smith’s office indicated last week that it needed more time “to assess the new precedent,” including “consultation with other Department of Justice components.”

“That timing illustrates just how unreasonable it is to have the potential for only a single day between a decision on first-impression Presidential immunity issues and an unprecedented and unwarranted sentencing,” Trump’s attorneys wrote in their letter to the hush money judge.

Smith’s update signaled a stark contrast from earlier in the case, when he stressed a need for speed. He never explicitly tied it to the election, but Trump’s hallmark strategy has been to delay his prosecutions in the hopes he can first retake the White House and grind them to a halt.

After Smith asked for more time, Chutkan, the judge, delayed her deadline until Aug. 30 for Smith and Trump to lay out their proposals for what should come next. Chutkan will hold a Sept. 5 hearing to discuss them and make a decision.

But the judge may order an evidentiary hearing that effectively becomes a “mini-trial” to apply the Supreme Court’s immunity test. It remains unclear if Smith will even push for such a step, however.

The same day Chutkan convenes both sides’ lawyers in Washington, D.C., the immunity decision will ripple through a courtroom in Arizona.

Mark Meadows, Trump’s former White House chief of staff, is attempting to move from state to federal court his criminal charges in Georgia and Arizona, which stem from his actions following the 2020 election. It would provide Meadows with additional pathways to dismiss the charges.

His appeal in Georgia is pending at the Supreme Court, which is likely to weigh this fall whether to take up the case after Meadows suffered a string of losses.

The endeavor is just getting started in Arizona. This week, a federal district judge scheduled a hearing for Sept. 5, a few hours after Chutkan begins hers.

Meadows, in a remarkable move, took the stand when his effort in Georgia got to that stage; it remains unclear if he’ll make the same high-stakes gambit again.

“While that decision addresses a former President’s immunity from federal prosecution, its reasoning further bolsters the case for immunity from state prosecution for the President and his seniormost advisors,” Meadows’ attorneys wrote in his Arizona filing.

As for Trump, he does face two other criminal cases beyond his hush money and federal election subversion charges, but appeals on other issues are set to stall them until well after November’s election.

Trump’s district judge in Florida, who is overseeing his documents prosecution, dismissed those charges by ruling that Smith, the special counsel, was unconstitutionally appointed. Smith is appealing, but a decision is not expected for months.

And in Georgia, where Trump is accused of entering a months-long conspiracy to overturn the state’s 2020 election results, the former president is appealing claims that Fulton County District Attorney Fani Willis (D) has a conflict because of her once-romantic relationship with a top prosecutor on the case, who has since stepped aside. Oral arguments in Trump’s appeal aren’t scheduled until December.

If Trump is not elected president, those appeals would still move forward.

But even if prosecutors prevail, then they will still have to face Trump’s immunity defense, newly bolstered by the Supreme Court.

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