For Trump, the Supreme Court's immunity ruling is the gift that keeps on giving

When the Supreme Court immunity decision came down on July 1, I quickly determined the worst part was not its top-line holding but something stealthily buried in its dozens of pages: its prohibition on using conduct immune from prosecution as evidence — even where the charged conduct is wholly unofficial.

Nothing better illustrates why than the brief Trump's team filed this week to overturn his conviction in the New York hush money case, in which the former president was found guilty of 34 felony counts of falsifying business records.

As expected, Trump’s team is not arguing in the brief — which was filed Wednesday and made public on Thursday — that he was immune from prosecution for falsifying business records per se. Instead, they assert that the Manhattan district attorney’s presentation of evidence included testimony, tweets and even a required government ethics form that are themselves evidence of Trump’s exercise of “core” presidential authority or, at the very least, within the outer perimeter of his official duties, and therefore, should not have been admitted. And then Trump’s team contends that these evidentiary errors require vacating the verdict because the court failed to exclude them at the “outset” of the case. 

But what’s perhaps most problematic — and predictable — is how it illustrates the malleability and manipulability of the Supreme Court’s decision, especially given the lack of guidance from the justices as to how it should be implemented. And that leaves Manhattan Criminal Court Judge Juan Merchan to deal with the aftermath of a constitutional aberration as well as a practical morass. How? 

First, Team Trump takes an unsustainably broad view of what falls within the president’s core executive authority, a category for which he has absolute, immovable immunity. Michael Cohen’s testimony alleging Trump told him the Federal Election Commission’s inquiry would be “taken care of” by then-Attorney General Jeff Sessions? That’s absolutely immune, Team Trump argues, because oversight of the federal investigative and prosecutorial authority is squarely within the president’s core executive authority. 

Trump’s 2018 tweets about Cohen are also entitled to absolute immunity, Trump's lawyers say, not just because they exemplify his “extraordinary power to speak to his fellow citizens,” but because they concern an area over which he has undisputed authority: law enforcement by the Justice Department and FBI.

Team Trump also claims absolute immunity for former White House Communications Director Hope Hicks’ testimony about her conversations with Trump in 2018, including one that took place after The Wall Street Journal reported on Cohen’s payment to Stormy Daniels. Despite the subject matter of the article predating his presidency and covering purely private conduct, that conversation qualifies as evidence of Trump’s exercise of his executive authority, Trump’s lawyers blithely assert, because they “involved efforts by President Trump to ‘supervise’ someone who was ‘wielding executive power on his behalf,’ which is an authority that ‘follows from the text of Article II.”

Perhaps more significantly, Team Trump assumes virtually all his statements and actions while in office at least fall within the “outer perimeter of Presidential power” and are similarly off limits. For example, their definition of this second tier of “official acts” evidence includes Trump White House aide Madeleine Westerhout’s testimony about her asking Trump Organization executive Rhona Graff for “contact information for people that President Trump ‘frequently spoke to.’” Those communications which did not involve Trump directly — count as official acts evidence, according to Team Trump, because Westerhout “testified that she made the request because ‘the President would often ask’ her to initiate calls, and she wanted to have a list of ‘people that he either spoke to often or might want to speak to.”

And as the brief continues, the list of what Trump's lawyers insist should have been excluded grows ever more attenuated from even the “outer perimeter” of a president’s duties.

Cohen’s testimony that Trump as president authorized Cohen, who was then serving as Trump's lawyer in name only, to comment on the FEC’s investigation? Official, according to Team Trump.

Then-Trump personal lawyer Jay Sekulow’s text to Cohen expressing Trump’s appreciation for Cohen’s public statement taking responsibility for the payment? Official, according to Team Trump.

It’s hard to conceive of a communication with or for Trump during his term in office that his lawyers wouldn’t consider official.

In short, their understanding of what comprises official conduct is, at best, elastic, and likely stretched too far for Judge Merchan. But Trump’s team has another argument that strikes me as more faithful to the Supreme Court’s majority opinion — and could knock out the verdict entirely.  

The majority made clear that “[q]uestions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding.” 

Otherwise, the majority reasoned, a president who might be entitled to immunity would have to endure “an extensive proceeding,” which could hamper a president’s “ardor” in doing his job. And though the majority never expressly applied this “outset of a proceeding” rule to questions of evidence of (as opposed to liability for) official acts, it also rejected special counsel Jack Smith's argument that various procedures during trial or on appeal would be enough to resolve immunity-related evidentiary issues. 

Trump’s team exploits that ambiguity, extending this holding to cover evidentiary disputes. And they then contend that at this stage of the proceedings, the Manhattan DA has no right to rebut the presumption of immunity for official acts, but instead, waived that opportunity by “rushing” to trial. What’s more, Team Trump argues that the solution is not to ask, as New York law does on a motion to set aside a verdict, whether Merchan’s errors in admitting official acts evidence were harmless. Rather, because the propriety of the evidence was not “addressed at the outset of a proceeding,” they argue Trump’s constitutional rights were impinged by the process itself and that the verdict must be vacated.

In other words, Merchan could find himself boxed in by a ruling that neither existed nor was even requested by Trump’s team in its briefs to the Supreme Court. And if that happens, that’s when the staggering breadth of the conservative justices’ gift to Trump will be fully understood.

Read the full brief below: