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

When the Supreme Court’s immunity ruling dropped on July 1, I quickly determined that the worst part wasn’t its top-of-the-line participation, but something stealthily buried within its dozens of pages: its ban about using conduct immune from prosecution as evidence – even when the accused conduct is entirely unofficial.

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

As expected, Trump’s team is not discussing the document – ​​which was presented on Wednesday and made public on Thursday. – that he was immune from prosecution for falsifying business records themselves. Instead, they assert that the Manhattan district attorney’s presentation of evidence included statements, tweets, and even a mandatory government ethics form which are in themselves evidence of Trump’s exercise of “central” presidential authority, or at least within the outer perimeter of his official duties, and therefore should not have been admitted. And then Trump’s team claims that these evidentiary errors require the verdict to be overturned because the court did not exclude them at the “beginning” of the case.

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

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

The Trump team also claims absolute immunity from former White House communications director Hope Hicks’ testimony about her conversations with Trump in 2018, including one that occurred after The Wall Street Journal reported in Cohen’s payment to Stormy Daniels. Although the subject of the article predates his presidency and encompasses purely private conduct, this conversation qualifies as evidence of Trump’s exercise of executive authority, Trump’s lawyers blithely assert, because it “involved President Trump’s efforts to ‘oversee.’ someone who was ‘exercising executive power in his name,’ which is an authority that ‘stems from the text of Article II.”

Perhaps most significantly, Team Trump assumes that virtually all of his statements and actions while in office at least fall within the “outer perimeter of presidential power” and are equally off limits. For example, their definition of this second level of “official acts” evidence includes testimony from Trump White House adviser Madeleine Westerhout that she asked Trump Organization executive Rhona Graff for “contact information for people with who President Trump ‘often spoke about’.” did not involve Trump directly — counts as evidence of official acts, according to Team Trump, because Westerhout “testified that she made the request because ‘the president frequently asked’ her to initiate phone calls, and she wanted to have a list of ‘people who he spoke often or perhaps wanted to speak.

And as the document goes on, the list of what Trump’s lawyers insist should have been excluded becomes increasingly attenuated even at 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 only in name, to comment on the FEC investigation? Official, according to the Trump team.

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

It is difficult to conceive of communication with or for Trump during his term that his lawyers would not consider official.

In short, your understanding of what constitutes official conduct is, at best, elastic and probably exaggerated for Judge Merchan. But Trump’s team has another argument that seems more faithful to the Supreme Court’s majority opinion – and which could overturn the verdict entirely.

The majority made it clear that “[q]Questions about whether the President can be held accountable for specific actions consistent with the separation of powers must be addressed early in a process.”

Otherwise, the majority argued, a president who might be entitled to immunity would have to endure “an extensive process,” which could undermine a president’s “ardor” in carrying out his job. And although the majority has never expressly applied this “proceeding” rule to questions of proof of (as opposed to liability for) official acts, it also rejected Special Prosecutor Jack Smith’s argument that multiple procedures during trial or on appeal would be sufficient to resolve evidentiary issues related to immunity.

The Trump team exploits this ambiguity, expanding this participation to cover evidentiary disputes. And they then allege that, at this stage of the process, the Manhattan district attorney did not have the right to rebut the presumption of immunity for official acts, but instead waived that opportunity by “rushing” to trial. Furthermore, Team Trump argues that the solution is not to ask, as New York law does in a motion to vacate a verdict, whether Merchan’s errors in admitting evidence of official acts were harmless. Instead, because the propriety of the evidence was not “addressed at the outset of a proceeding,” they argue that Trump’s constitutional rights were violated by the proceeding itself and that the verdict should be overturned.

In other words, Merchan could find himself cornered by a decision that did not exist nor was even requested by Trump’s team in their reports to the Supreme Court. And if that happens, it will be then that the astonishing breadth of the gift given by the conservative judges to Trump will be fully understood.

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This article was originally published in MSNBC.com