On Monday, former President Donald Trump asked the Supreme Court to stay the federal election interference case against him while he further appeals a federal appellate decision denying him “immunity from prosecution for official acts” taken as president. Given that his climb up the appellate ladder could take months, the timing of the justices’ decision is basically the whole ballgame. After all, a high court ruling vindicating Trump’s indictment in Washington could be virtually meaningless if he cannot be tried before the election — and then wins.
There’s no question that the immunity appeal is a huge deal — at least as far as the Jan. 6-related case, which many consider the most consequential criminal case the former president is facing. But of Trump’s three other criminal cases, there are at least two in which the immunity ruling is already unlikely to have any impact: the Mar-a-Lago documents case, which is pending before federal Judge Aileen Cannon in Florida, and the Manhattan district attorney’s so-called hush money case, which is currently scheduled to be tried next month before state Judge Juan Merchan in New York.
If, as Trump asserts, a former president is immune from prosecution for any and all of his official acts, why wouldn’t that defense work in these two cases?
If, as Trump asserts, a former president is immune from prosecution for any and all of his official acts, why wouldn’t that defense work in these two cases?
First and foremost, in the Mar-a-Lago case, there is some discussion, of course, of Trump’s authorized, lawful access to classified documents and other national defense-related information during his presidency. But when one looks at the criminal charges in that indictment, it is clear that all of Trump’s charged conduct concerns actions and decisions when he was no longer president. As laid out in the current version of the indictment, the first 32 counts involve conduct that special counsel Jack Smith alleges took place between Jan. 20, 2021, and Aug. 8, 2022 (i.e., the date of the FBI search of Mar-a-Lago); the remaining counts against Trump center on events or periods of time in May 2022 or later.
Therefore, even though Trump’s lawyers promised in a recent filing that they will move to dismiss the Mar-a-Lago case on or before Feb. 22 on grounds of presidential immunity, they probably understand that the argument, at least under the Constitution, is unlikely to prevail, given the time frame at issue. (Indeed, based on a flurry of briefs over the last week, it appears they are far more focused on accusations of selective/vindictive prosecution, which are both politically advantageous for Trump and potentially persuasive to Judge Aileen Cannon.)
But what about the hush money case, you ask? Why wouldn’t Trump test an immunity defense in that matter? The case, after all, concerns a scheme developed before Trump was elected, but the charges themselves revolve around his alleged falsification of business records in February 2017 through December of that year, his first in the White House. Nonetheless, he has never moved to dismiss that indictment on grounds of presidential immunity. Why? Because a federal judge has already ruled that the argument isn’t a colorable defense.
You may recall that last year, Trump tried to move the hush money case from state court to federal court on the grounds that as a former federal officer, he was entitled to have a federal court determine any federal issue or defense in the case. But he failed to convince Judge Alvin Hellerstein of Manhattan’s federal bench that the case was eligible for removal because neither of the federal defenses Trump said he would raise passed Hellerstein’s smell test. Specifically, the judge rejected Trump’s argument that he was immune from prosecution because his conduct was “taken solely because he was President of the United States” and thus his “decision to retain Michael Cohen to act as his personal lawyer arose out of his duties as President.” Hellerstein explained: Trump’s argument is conclusory. No evidence was presented to support it, and Trump has not explained how hiring and making payments to a personal attorney to handle personal affairs carries out a constitutional duty. Reimbursing Cohen for advancing hush money to Stephanie Clifford cannot be considered the performance of a constitutional duty. Falsifying business records to hide such reimbursement, and to transform the reimbursement into a business expense for Trump and income to Cohen, likewise does not relate to a presidential duty. Trump is not immune from the People’s prosecution in New York Supreme Court. His argument of immunity is not a colorable defense.
Trump initially appealed that decision but ultimately abandoned his appeal — and the immunity defense with it. So is the Supreme Court’s handling of Trump’s immunity defense important? Yes. But is it the linchpin to the efforts to hold Trump accountable for his varied and numerous alleged criminal acts? Not even close.
Lisa Rubin is MS NOW's senior legal reporter and a former litigator.
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