< The Supreme Court's immunity ruling complicates all the cases against Trump

DOMENICO MONTANARO, HOST:

A big win for Trump at the Supreme Court. From NPR, this is TRUMP'S TRIALS. I'm Domenico Montanaro.

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UNIDENTIFIED CROWD: (Chanting) We love Trump.

DONALD TRUMP: This is a persecution.

UNIDENTIFIED PERSON #1: He actually just stormed out of the courtroom.

UNIDENTIFIED PERSON #2: Innocent until proven guilty in a court of law.

MONTANARO: Former President Donald Trump scored a major victory with the Supreme Court's ruling granting him broad immunity, and it stunned many legal and government experts.

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UNIDENTIFIED PERSON #3: This is a watershed moment.

UNIDENTIFIED PERSON #4: This decision was written as if America has never had a corrupt president.

UNIDENTIFIED PERSON #5: This is not America.

UNIDENTIFIED PERSON #6: This seems to me to be protection and cover.

UNIDENTIFIED PERSON #4: This opens the door to abuses of power.

UNIDENTIFIED PERSON #5: It's quite unlikely that any future former presidents could be held responsible for criminal acts committed during their presidency.

MONTANARO: And no outcry was more powerful than from Justice Sonia Sotomayor, who wrote this in her dissent.

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DANA BASH: (Reading) What if a president orders the Navy SEAL Team Six to assassinate a political rival? Immune. Organizes a military coup to hold on to power - immune. Takes a bribe in exchange for a pardon - immune, immune, immune.

MONTANARO: That's CNN's Dana Bash, reading from Sotomayor's dissent, which the justice closed by saying, with fear for our democracy, I dissent. With this decision, the Supreme Court has all but ensured the federal election interference case will not go to trial before the November election. When we come back, we'll get into how this affects Trump's legal cases with former U.S. attorney Harry Litman.

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MONTANARO: And we're back with former Deputy Assistant Attorney General Harry Litman. Harry also clerked for two Supreme Court justices, Justice Thurgood Marshall and Justice Anthony Kennedy. Quite the resume. Good to have you with us.

HARRY LITMAN: Thanks, Domenico. Good to be here.

MONTANARO: Well, first, Harry, what's your reaction to this immunity decision?

LITMAN: I was horrified by it, I think it is fair to say. It was way more expansive and, I think, pernicious than I anticipated, and I'd anticipated something problematic. So it's an opinion that just gets worse in the rereading. And it seems to me to restructure and reconfigure the whole relationship between the executive branch and the other branches more than any case in the court's history, except Marbury v. Madison.

MONTANARO: There's going to be a lot of people who might not know what the differences are here and there, so maybe we can define some things...

LITMAN: Sure.

MONTANARO: ...In this Supreme Court decision. You know, the court found presidents have absolute immunity for core constitutional powers. But what did they say is a core constitutional power?

LITMAN: You know, in all of these things, they just gave illustrations. So we think every illustration they gave is for something listed in Article 2, which sets out the president's powers. But some of those, like the Take Care Clause, are very broad. Some, like giving of pardons, are pretty specific. But that's at least the paradigm and maybe the whole category of the exclusive presidential powers that can't be made to be a crime, no matter what.

MONTANARO: I see. You know, they said that there's some presumption of immunity, too, as opposed to absolute immunity for other, quote, "official" acts. Of course, we don't exactly know what an official act is or an unofficial act. The lower court is now going to have to sort of decide some of that within this Trump case. But broadly speaking, and maybe giving us some clues from what Justice Roberts had said - and others, what is an official act that doesn't fall under the core constitutional power, but may get some presumed immunity?

LITMAN: Right. Well, it's slippery, and it either gets presumed immunity or it doesn't. But they say no more than it is an official act. And you can imagine things that the president does every day that aren't part of the Article 2 powers - have press conferences and all kinds of things that are broader. And we know that from other previous court opinions. The real problem is trying to distinguish between a official act that isn't in the core of Article 2 and an unofficial act because that's the line that when you draw it, there is the possibility of making something criminal. But the court is pretty cryptic here about saying what counts. And there seems to be an argument that you can make for almost anything that it's an official act. And if it is an official act, the government has to prove, has the burden of showing that it would not impinge on the president's authority to make it a crime. So we're left with a lot of open questions in the wake of the opinion.

MONTANARO: So what, then, do you think is clearly unofficial act?

LITMAN: Well, we can sure posit it. For example, there's talk now about what happens in Manhattan. Well, in that case, Trump got convicted for, before he was even in office, paying off a woman he'd had a tryst with in order to keep the facts from the American people. And he's not even president, so you can't perform an official act and tell your president. On the other hand, he followed that up with signing personal checks in the Oval Office. That also seems to be an unofficial act.

What could be more personal than that? That's not listed anywhere in the president's kind of constitutional or other duties. But one big problem here is the court has said, when you're deciding, even if it's an unofficial act, you cannot take into account any evidence of conduct that would be an official act.

So back in Manhattan, there were a few things that the DA introduced - a conversation with Hope Hicks when he was president, other tweets that he could argue have some official kind of function. And so it gets pretty murky.

And when you determine that something could be potentially within the president's official act - the outer reaches of it - then there's a whole another responsibility that the prosecution has to undertake of showing this wouldn't impinge on the authority of a president. All a long-winded way of saying that even things that seem very clearly unofficial could be hard to prove that they are and could always give rise to an argument that they are not.

MONTANARO: Because of the timeline here, this case is basically way pushed off beyond November's election. You know, there's not going to be a verdict for people to consider when they go to the ballot box. And I want to talk a little bit, though, about the fact that this case is going to be continuing to a point. But what does this do to Jack Smith's case?

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, we'll - 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.

MONTANARO: How hard's 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 to put it in that category. What sounds like a pretty non official action - he can proffer reasons to say, at least this ought to be presumed immune, and presumptions have weight in the criminal law, and you - 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 because of - those conversations fall under immunity? I mean, what does it mean for Smith's case that this evidence would be out, if it is?

MONTANARO: That's exactly what it means, and it sure makes me puzzled as much as you. It's what the lawyers would call a non sequitur. OK, so you're worried about that. Why then should you not even be able to probe the most rampant criminal conduct?

Consider the Nixon case, where that's what happened, and the verdict of history certainly is that that was improper, possibly criminal. That's now off the table. 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 - 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: It's kind of ironic, honestly. You know, in August 1974, 50 years ago, Nixon resigned essentially because he didn't want to be prosecuted for potential criminal acts that he directed. And he was pardoned by Ford when he took office for any potential crimes.

And hasn't this sort of norm come into place all because of Watergate to say that, you know, there's some degree of separation between the president and the Justice Department and that a president doesn't control the Justice Department? Isn't that the case? And what's that going to mean going forward?

LITMAN: Yeah, so I think that's exactly right. And Ford even wrote in the pardoning statement that there's some reason to suggest that Nixon has criminal liability. And now that would just be a nonsense statement because the new Supreme Court has interpreted as saying that there cannot be. What does it mean going forward? Whatever norms are in place and however much they are actually adhered to by some administrations, because it's the right thing to do. There's no power at all to police it and even up to and including crime.

So I think it's really clear that Nixon would not have had any criminal exposure under this opinion. And then going forward, the very presidents for whom you most need it, those are the ones you just can't get it for. So it's a profound reordering of the relationship, but it's really clear who they are elevating, and that is the president to a position that I think there's no way of getting around is the single official in the government who's above the law.

MONTANARO: Well, like any good lawyer at the Supreme Court, let's put some hypotheticals to the test. Because we saw obviously strong dissent from Supreme Court Justice Sonia Sotomayor, who said, you know, talked about the president potentially ordering an assassination of a political rival, organizing a military coup to hold on to power, taking a bribe in exchange for a pardon. She's claiming that all of those would be immune. Is that the case? Is that a little hyperbolic, or is there some truth there?

LITMAN: There's more than some truth. Really, you know, in the wake of these decisions, you often have these accusations, sometimes accurate of hyperbole, but this is just straightforward application of what the court said. If you're within the core powers that we talked about at the beginning, you may not be held to criminal account. Are you within the core powers with pardons? Yes. So if you do it for million dollar bribe, that's your motive, but you cannot be charged with a crime. The inquiry begins and ends with asking, are you acting under your Article II powers? Now, you might say that that would be exactly the time when you would most need criminal penalties because there's no other check on you. Congress, by definition, can't tell you what to do there. So it should be the criminal law that is the ultimate backstop. But that backstop goes away, and there's none behind it. So I think that it's just a statement of fact from Sotomayor, and I haven't heard any cogent argument to the contrary, that you act within these areas of core responsibility, you have a full pass on criminal conduct.

MONTANARO: Let's talk about just very briefly a couple of the other cases and the potential domino effect from this case. 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, the 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, or 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.

MONTANARO: We'll be back next week with another episode of TRUMP'S TRIALS, and thanks to our supporters who hear the show sponsor-free. If that's not you, it could be. Sign up at plus.npr.org or subscribe on our show page in Apple Podcast. The show is produced by Tyler Bartlam and edited by Adam Raney and Krishnadev Calamur. Our executive producers are Beth Donovan and Sami Yenigun. Eric Marrapodi is NPR's vice president of news programming. I'm Domenico Montanaro. Thanks for listening to TRUMP'S TRIALS from NPR.

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