'Gift to Trump': Legal expert says Supreme Court decision could 'knock out' Trump verdict
The Supreme Court's recent pro-Donald Trump immunity ruling could "box in" the New York judge overseeing the case in which the former president was convicted of 34 felonies, a legal expert said Thursday.
The Supreme Court ruled that former presidents do enjoy immunity for many of their official acts from when they are in office, prompting a delay in Trump's sentencing after he was convicted in the case about falsifying business records to hide an alleged affair ahead of the election in 2016.
Lisa Rubin, a frequent legal analyst appearing on MSNBC, suggested on Thursday that Trump could succeed in evading accountability altogether in the case.
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"When the Supreme Court immunity decision came down, some of us said its worse pieces were the prohibitions on using conduct immune from prosecution as evidence and considering motive to suss out what is official versus unofficial conduct," Rubin wrote. "Trump's brief to overturn the NY criminal verdict because of those pieces illustrates why. It assumes virtually all statements made & actions taken in office were official and that testimony about them is similarly off limits, even if coming from private actors, like Michael Cohen."
She continued:
"And while judges can consider 'content, form, and context' of his statements to determine whether or not they are official, they can't look to his motive. So Trump's telling Cohen that then-AG Jeff Sessions would take care of the FEC inquiry? Absolutely immune, says Trump."
Rubin said "oversight of the federal investigative and prosecutorial authority is squarely within the President's core executive authority, Trump's lawyers say, citing the SCOTUS majority."
"There are places their rubber band of official conduct is stretched too far. But they have another argument that strikes me as more faithful to the majority opinion--and could knock out the verdict entirely, regardless of whether certain evidence should not have come in," she added Thursday. "And it's this: The majority says that immunity decisions must be made at the 'outset' of the case; otherwise, a president entitled to immunity would have to bear the burdens of pre-trial discovery and litigation, which is no immunity at all."
Rubin concluded that, "though the majority never expressly applies this to evidence of (as opposed to liability for) official acts, it also *rejects* the Special Counsel's argument that various procedures during trial or on appeal would be enough to resolve immunity-related evidentiary issues."
"In other words, Merchan could find himself boxed in by a ruling that neither existed nor could have been fully predicted before or during his trial. And if that happens, that's when the staggering breadth of the Court's conservatives' gift to Trump will be fully understood."