Opinion: Trump’s immunity has a limit. Here’s where he’ll find that out

Editor’s Note: Norman Eisen is a CNN legal analyst and editor of “Trying Trump: A Guide to His First Election Interference Criminal Trial.” He served as counsel to the House Judiciary Committee for the first impeachment and trial of Trump. The views expressed in this commentary are his own. Read more opinion at CNN.

Before the ink was dry on the US Supreme Court’s extreme presidential immunity opinion on Monday holding that former presidents are immune from criminal prosecution for certain official acts, former President Donald Trump launched a Hail Mary to once again try to delay accountability for his crimes in New York.

Norm Eisen - Courtesy Norm Eisen
Norm Eisen - Courtesy Norm Eisen

Trump’s attorneys wrote to Justice Juan Merchan to delay the previously scheduled July 11 sentencing for his conviction on falsifying business records while Trump petitions the court to overturn that conviction based on the Supreme Court’s decision. We can expect to see something similar in Georgia soon, with Trump using the opinion to update his initial motion to dismiss that case on immunity grounds filed earlier this year. Trump has pleaded not guilty in Fulton County to charges alleging election interference.

Merchan has postponed Trump’s sentencing in Manhattan to September 18 to allow time to rule on the motion, stating that he will do so by September 6. When that happens, the convictions should not and almost certainly will not be disturbed. The Supreme Court opinion does not affect Trump’s 34 felony convictions stemming from the 2016 election conspiracy and cover-up.

Nor will the ruling save Trump from facing accountability for conspiring to change the outcome of Georgia’s 2020 presidential election. In both instances, the alleged actions related to his campaign were purely personal and political and are clearly unofficial conduct not “within the core of his official duties” as president. And as Chief Justice John Roberts wrote for the majority, “There is no immunity for unofficial acts.”

Let’s begin with the Manhattan case. Conspiring to unlawfully interfere in the presidential election as a private citizen by paying hush money to an adult film actress and then falsifying business records to cover it up is not even “within the outer perimeter” of a president’s official responsibilities, as Trump’s team argued. Trump was not yet president in 2016 when he tried to influence the election by keeping Stormy Daniels quiet about her allegations of a liaison with him (which Trump denies). And although he was president in 2017 when he reimbursed his private attorney for fronting the money to Daniels, his falsification of Trump Organization business records was certainly not part of his presidential duties.

These private acts have no resemblance to those the Supreme Court indicated are official, such as Trump considering replacing the attorney general or allegedly pressuring Justice Department employees to make false voter fraud claims to state officials.

Trump knows that, of course. So out of desperation, he is complaining that stray pieces of evidence introduced at his trial constitute official acts for which he is immune from prosecution, and thus that evidence should not have been admitted before the jury under the recent Supreme Court opinion. But Trump already tried to block his New York felonies on the basis of presidential immunity, and both federal and New York courts rejected his arguments.

First, he claimed presidential immunity when he tried to remove his case from state court to federal court. The federal court found Trump was not immune because the alleged campaign corruption and cover-up were purely personal and political, not official: “Hush money paid to an adult film star is not related to a President’s official acts. It does not reflect in any way the color of the President’s official duties,” wrote US District Judge Alvin Hellerstein. Regardless, the court explained that Trump had “expressly waived any argument premised on a theory of absolute presidential immunity.” Trump abandoned his appeal of that decision, so as a matter of law he is barred from wasting more time raising this claim again.

Despite his loss in federal court, Trump next argued unsuccessfully in state court that presidential immunity protected him from prosecution. Like the federal court, Merchan swiftly rejected this claim, explaining that Trump, who waited until after the state court’s deadline for such motions, had plenty of opportunity to raise it sooner.

Trump’s Monday letter to Merchan also fails on the merits. His argument that some evidence was related to official conduct flops if you look at the specifics.

First, Trump’s 2018 Office of Government Ethics financial filing disclosing the payment to his former attorney Michael Cohen was properly admitted because, even if completing it was an official act for which Trump cannot be prosecuted, it is a public record — and as the Supreme Court explained, “Of course the prosecutor may point to the public record to show the fact that the President performed the official act.” Introducing this type of routine publicly available filing poses absolutely no “dangers of intrusion on the authority and functions of the Executive Branch” that the opinion is concerned with.

Second, the prosecution introduced at trial some of Trump’s tweets, likely all of which reflect private, not official, conduct and thus were properly admitted in evidence. Many of the tweets from Trump’s time in office involved Trump’s private, personal attorney, Cohen — such as discussing Cohen’s retainer, the reimbursements to him and the non-disclosure agreement between Cohen and Daniels. These kinds of tweets clearly concern Trump’s personal affairs, which makes them admissible as unofficial, private conduct.

Finally, Trump may seek to challenge testimony from two prosecution witnesses who worked in the White House: Trump’s former executive assistant Madeleine Westerhout and communications director Hope Hicks. But again, their testimony focused on their knowledge of Trump’s personal, not official, conduct — including the process by which Trump reimbursed Cohen and what Trump thought of Cohen’s purely non-governmental activities relating to the hush money. There is no credible argument that any of that constitutes official conduct that would be off-limits to the jury.

What of Trump’s other election inference case — the Fulton County prosecution in Georgia? Here, too, the “official acts” exclusion in the immunity ruling is his bane.

Just as a mini-trial in DC on the 2020 election interference federal charges would indicate substantial unofficial conduct including his contacts with state authorities and private parties, so too would an evidentiary hearing in Georgia. As Justice Amy Coney Barrett observed in her opinion concurring in part with the majority, “The President has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker” (whom the federal indictment alleges that Trump pressured on election fraud claims) would be off-limits. The Georgia indictment similarly focuses on Trump pressuring state officials, including the infamous call with Georgia Secretary of State Brad Raffensperger in which Trump said he had to “find 12,000 votes.”

Although Trump will argue that he was merely ensuring the integrity of a federal election, the “close analysis” of the federal indictment’s “extensive and interrelated allegations” that the Supreme Court requires will show this was personal and political, not official, conduct. Indeed, the federal courts have already held that the conduct at issue in the Georgia indictment is political, not official, in the context of a failed effort by former White House chief of staff Mark Meadows to remove the case from state court (albeit on other legal grounds).

Trump is not immune in his 34 felony convictions in Manhattan or the Georgia prosecution, and his current and coming efforts to invoke the Supreme Court’s recent opinion in both places will surely fail.

As for those who are frustrated that Merchan is holding things over until September in New York City — don’t be. The judge taking his usual methodical approach has the incidental effect of eating up the runway Trump needs to get this issue to the only court dishonest enough to say immunity may apply here: the Supreme Court. After the trial court rules, there will be two layers of time-consuming state appellate review before the deeply conflicted justices Clarence Thomas, Samuel Alito and their colleagues gets their bite at the apple. That almost certainly won’t come until 2025.

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