Supreme Court immunity ruling likely to affect Trump's cases, says former DOJ official

Transcript

ADRIAN FLORIDO, HOST:

Now to the Supreme Court. The Supreme Court's landmark ruling this week that presidents enjoy broad immunity from criminal prosecution stunned many in the legal world. But for former President Trump, it was a victory. The decision has all but ensured the federal election interference case against him will not go to trial before the November election. It also affects his three other pending cases, along with the New York hush money trial, where a jury already found Trump guilty of 34 felony counts.

So how does special counsel Jack Smith move forward here? My colleague Domenico Montanaro spoke to former Deputy Assistant Attorney General Harry Litman about this. He started by asking what this decision does to Smith's two cases against Trump.

HARRY LITMAN: So for Smith, he's got two cases, right? The one from January 6, I'd say it guts, if not completely nullifying. So there's big parts of the case that the court had made clear just go away - for instance, everything involving his scheming with the DOJ to send false information to Georgia saying, hey, you guys have some fraud problems in your election. That's a, you know, flat-out fraud scheme. But because it falls into the category of something that's core, at least the way the court put it, talking with the DOJ, he's got a free pass.

Then there are other things that the courts say, you know, well, you'll have to see one way or another. The most likely to survive seems to be the state elector schemes, where he tries, with a lot of actors, to have fraudulent certificates used on January 6. Maybe that survives. And then on Mar-a-Lago, you know, his action was after he was out of the White House, except he's claimed that when he was in the White House, he made these certificates or other national security papers - he declassified them.

And it's hard to know how Jack Smith rebuts that, given what the court has said. So for Jack Smith's two cases, they're hurting, but not certainly dead. And of course, that's only if Trump were to lose, because if he wins, he just gives the command - drop these cases - and that command will happen.

DOMENICO MONTANARO, BYLINE: How hard is it going to be, you think, for Jack Smith to overcome the presumption of immunity in this January 6 case, as he tries to make this case going forward?

LITMAN: That's a really good question and one we just don't know the answer to because they gave such sketchy guidance. I think it'll be pretty easy for Trump. He can proffer reasons to say at least this ought to be presumed immune. And presumptions have weighed in the criminal law, and often things are decided based on them alone. So what kind of showing Jack Smith is going to have to make to convince a court that this wouldn't intrude on the authority of a president, and is it just this action in particular or the whole class of such actions? It's a really murky part of the opinion.

MONTANARO: So I want to read a little excerpt from Chief Justice John Roberts' opinion. And he said, because the president cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. I think, for a lot of us, that raised our eyebrows tremendously. I'm sure it did for you, too. I mean, reading this right, does this mean that the evidence of Trump pressuring the DOJ into validating his false claims that there was fraud in the election is now out?

LITMAN: That's exactly what it means, and it sure makes me puzzled as much as you. What does it mean for Smith's case? That part of Smith's case that has to do with conversations with DOJ, even though they seem completely beyond the pale, like, they're just gone. They just vaporize. And the chief justice, in his opinion, said it flat out because it involves those conversations, as wicked and as criminal and as far from what you think a president should be doing as you can conceptualize them. They are all off the table. It's just as if they never happened, for purposes of trying to prove a crime.

MONTANARO: Let's talk about, just very briefly, a couple of the other cases and the potential domino effect from this case. You know, Trump was originally supposed to be sentenced for his guilty verdict in the hush money trial in New York next week on the 11. That's been now delayed till September 18, which happens to be a week after the potential final presidential debate. Is there a reality in which the conviction gets thrown out because of immunity at all, as the Trump campaign and Trump himself, Trump legal team is trying to push for in New York?

LITMAN: So the upshot of this opinion is there's always a reality. I don't think it should happen. What could be more unofficial conduct than, before you are president, having a scheme to pay off someone so they don't reveal a sexual tryst that could influence the American people? But some of the conduct takes place in the White House.

The real challenge here is with this point about motive because the court says not only that, you can't consider motive, but you can't even offer as evidence something that could be an official act. And what happened in this case is that some of the evidence - I was there for it - was testimony of Hope Hicks when she was his communications director, were certain tweets. And can Trump argue that those were important and official and they shouldn't have come in? And then one more step he'd have to take, which is to say it mattered. It wasn't harmless error.

To me, I don't think that Justice Merchan will credit those arguments enough to say there should be a new trial, which is all that there could be - a new trial. They wouldn't throw out the case. But could a higher court, up to and including the Supreme Court, say, you know, that evidence was pretty powerful, and it was of official acts, and we now know from the Trump case it shouldn't have come in? Yeah, that could happen. We really are in a whole new world where kind of anything could happen in any case.

MONTANARO: Whole new world indeed. Harry Litman, thank you so much for being with us. Always appreciate your time.

LITMAN: Thanks, Domenico.

FLORIDO: You can hear more of that conversation and get the latest on all of Trump's legal cases by listening to Trump's Trials from NPR News. You can find it wherever you get your podcasts. Transcript provided by NPR, Copyright NPR.