Two of former President Trump’s legal cases collided Thursday, as the Supreme Court held a hearing on his broad claims of immunity from criminal prosecution while his trial continued in New York over a hush money payment for adult actress Stormy Daniels..
The Supreme Court case has the capacity to derail Trump’s other three proposed trials — for alleged offenses relating to the Capitol riot of Jan. 6, 2021, the retention of sensitive information at his Florida resort of Mar-a-Lago and attempts to overturn the 2020 election result in Georgia.
Special Counsel Jack Smith, the prosecutor In the Jan. 6 and Mar-a-Lago cases, had pressed the Supreme Court to make a swift determination on the immunity question, to no avail. Smith asked back in December for the court to decide the issue swiftly — at a time when Trump’s trial was scheduled for March.
The justices instead let the process play out at its regular speed — an advantage for Trump.
Less advantageous to the former president are the proceedings in New York, where reporters in the court say he has sometimes seemed exasperated to have to sit through the re-airing of allegations of lurid personal conduct.
Here are the main takeaways from the two proceedings
A good day for Trump at the Supreme Court
The Supreme Court hearing, the more important matter on Thursday, broadly went Trump’s way.
The only negative for Trump was that the justices appeared skeptical of the broadest argument made by his team — that a president or ex-president enjoys virtually unlimited criminal immunity for any action committed in office.
But against that, several of the Court’s six conservative justices appeared eager to draw a distinction between “official” acts and “private” acts —and seemed inclined to offer the president protection from prosecution for the former, at least.
They pressed the Department of Justice’s lawyer Michael Dreeben hard on whether past presidents could, hypothetically, have been prosecuted for specific acts taken while in office.
Justice Samuel Alito asked whether former President Franklin D. Roosevelt could have been prosecuted for infringing the civil rights of Japanese-Americans by interning them during the Second World War. “Today, yes,” Dreeben responded.
Justice Clarence Thomas drew a similar hypothetical over Operation Mongoose, a clandestine CIA-led effort in the early 1960s to depose the Cuban government led by Fidel Castro.
The general tenor of the conservatives’ arguments drew implicit rebukes from their liberal colleagues.
Justice Ketanji Brown Jackson asked John Sauer, representing Trump, “Why is it that the president would not be required to follow the law when he is performing his official acts?”
Justice Sonia Sotomayor complained that the principle that no-one is above the law “in his official or private acts” has “been somewhat put into suspicion here.”
But, with conservatives holding a 6-3 majority, the odds favor Trump and his team
Time — and delay — are Trump’s friends
There was another positive for Trump in the Supreme Court hearing.
The apparent willingness of the conservative justices to emphasize a distinction between private and official acts opens the door to further delay in the underlying trial on Jan. 6-related charges.
Two of the three justices Trump appointed during his term — Justice Neil Gorsuch and Justice Brett Kavanaugh — suggested that more hearings could be required to adjudicate the distinction when it comes to the specific charges in the former president’s indictment.
Trump wants to kick as many of the trials as possible past the date of the presidential election.
If Trump were to win the presidency for a second time, he could order the Department of Justice to drop any federal cases against him.
Notably, he does now have that power over state cases, such as the New York hush money trial and the Georgia election probe.
But Trump’s legal team made some startling claims
Under questioning from Sotomayor, Trump’s lawyer made some startling arguments.
The most striking of all was to suggest that a president could enjoy criminal immunity for killing a rival.
Sotomayor laid out the hypothetical where “the president decides that his rival is a corrupt person and he orders the military, or orders someone, to assassinate him.” She then asked, “Is that within his official acts for which he can get immunity?”
“It would depend on the hypothetical,” Sauer responded before adding that it “could well be an official act.”
The suggestion caused instant uproar on social media, and was met with immediate condemnation from some quarters.
“Understand what the Trump team is arguing here,” Rep. Alexandria Ocasio-Cortez (D-N.Y.) wrote on social media. “Take it seriously and at face value. This is not a game.”
In New York, a clash with Trump rallies
In New York, there have been ongoing legal battles over whether Trump has violated a gag order in social media posts that have attacked various adversaries.
Prosecutors are arguing that the former president has violated the gag order 10 times, and they want the court to levy a $1,000 fine in each instance. Trump’s team has contended he is simply responding to claims made by others.
Judge Juan Merchan has scheduled another court date on the matter for Wednesday — typically the day off from trial proceedings in the case.
The complication is Trump has rallies scheduled for that day in Wisconsin and Michigan.
It’s the most direct example yet of how the legal cases are intersecting with Trump’s efforts to win back the White House.
An unusual warmth toward a damaging witness
The first week of actual trial proceedings in New York has been dominated by former magazine executive David Pecker.
Pecker has outlined how the National Enquirer, the tabloid of which he was previously publisher, bought stories that could have been damaging to Trump with the intention of quashing them.
There seems little doubt that Pecker’s evidence has helped the prosecution more than the defense, so it was somewhat incongruous to hear Pecker say he considers Trump a “mentor” and for the former president to return the warmth.
The quick-to-anger Trump called Pecker a “nice guy,” leaving some observers scratching their heads.
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