Litman: Will Trump's conviction survive the Supreme Court's immunity ruling? It's complicated


It was only hours after the Supreme Court issued its staggering term-ending opinion on presidential immunity when Donald Trump invoked it in an attempt to set aside his criminal conviction in New York.

On the surface, the effort would seem ill-fated and even brazen.

The opinion made a top-line distinction between “official actions” — which are either immune or presumed immune from criminal prosecution — and “unofficial actions,” which are not. And it’s hard to imagine more prototypically unofficial actions than those of which Trump was convicted in the New York case. While still running for president, Trump devised a scheme to suppress stories of his alleged trysts — in particular with the adult film actor Stormy Daniels — and falsified business records to further the cover-up.

Most of the critical conduct took place before Trump was in office, the exception being the payments to his fixer, Michael Cohen, that generated the false paperwork. And the reimbursement of Cohen from a personal bank account was patently unofficial conduct even though it coincided with Trump’s presidency.

So Judge Juan M. Merchan, who presided over the trial, might be expected to make quick work of Trump’s effort to shoehorn the conviction into the sphere of “official action” for which the court prescribed immunity.

In fact, however, the court’s opinion is strewn with mines and sinkholes that Trump might be able to use to gain a new trial or at least render his conviction provisional for an extended period. These facets of the opinion are part and parcel of its enormous scope and overreach, all to protect a party of exactly one: the only president ever to be charged with a crime.

The court’s revolutionary holding places the president largely outside the reach of criminal law, but the conservative majority wasn’t content to stop there. Its expansive guidance “for the ages,” as Justice Neil M. Gorsuch put it at oral argument, dictates that a jury may not even consider a president’s official acts as evidence to prove a crime involving unofficial conduct.

The court’s reasoning here is particularly threadbare, simply asserting that allowing evidence of official actions would undo the protections of immunity, which the conservative majority considers necessary to ensure a nimble and vigorous presidency. Yet it makes little sense to suggest that a president would be constrained by the prospect that a jury might one day hear about their official actions. Most official actions are public anyway, and those that aren’t can be protected by executive privilege and other means when there is a particular need to to so.

This is where Justice Amy Coney Barrett parted with her fellow conservatives, noting that “the Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable.”

In the context of Trump’s motion to set aside his New York conviction, a fair-minded court should have little trouble concluding that the conduct at issue was unofficial and therefore not subject even to the generous immunity protections prescribed by the justices. However, some of the evidence presented at trial at least arguably concerned official conduct, particularly under the Supreme Court’s wide-ranging, categorical definition of the term.

Most notably, the jury heard testimony from Hope Hicks about a conversation she had with Trump in 2018, when she was the White House communications director, about a report on Cohen’s hush money payments to Daniels and its public opinion repercussions. Prosecutors described Hicks’ testimony, which ended with her breaking down in tears, as “devastating.”

So was Trump’s conversation with Hicks in the White House “official conduct” that, under the immunity opinion, never should have been presented to the jury? And if so, do the convictions have to be set aside?

Those questions are far from straightforward. The answers depend not only on how the Hicks conversation is characterized but also on a thicket of procedural issues. Those include whether Trump may have waived the issue, whether any waiver applies under the Supreme Court’s holding and whether any error in allowing the testimony could be deemed harmless given the strength of the rest of the evidence.

Trump’s conviction may well survive the Supreme Court ruling in the end, but getting to that point won’t be quick or simple. Moreover, Merchan’s ruling is likely to be appealed to higher courts in New York and eventually the U.S. Supreme Court. That prospect could well temper the analysis of lower courts that now understand the breadth and zeal of the justices’ determination to shield Trump from accountability.

It appears as if the Supreme Court has dealt Trump not just a get-out-of-jail-free card but a whole deck of them, allowing him to contest and delay multiple facets of the nearly 100 criminal counts against him. If it turns out that he can use it to his advantage in New York, where he stands already convicted of manifestly personal conduct, it’s hard to imagine a case where he can’t.

Harry Litman is the host of the “Talking Feds” podcast and the “Talking San Diego” speaker series. @harrylitman





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