How Trump’s Immunity Win at the Supreme Court Threatens Fani Willis and Alvin Bragg — Not Just Jack Smith

The petition from a former chief of staff to President Trump, Mark Meadows, that the Supreme Court re-examine his Georgia criminal case on the basis of its landmark immunity ruling last month brings into sharp relief how that decision will be felt in each of Trump’s criminal trials — even the ones under way in state court.The petition from the former chief of staff comes as Judge Juan Merchan at Manhattan weighs whether that immunity decision — Trump v. United States — affects the state criminal trial over which he presided. It ended with a jury bringing in 34 convictions against the 45th president. Judge Merchan was due to sentence Trump this month, but he pushed off that decision to digest the high court’s ruling that presidents are owed immunity for official acts but not unofficial ones. Trump claims that his convictions cannot withstand that holding. District Attorney Alvin Bragg contends that the “Supreme Court’s recent ruling … has nothing to say about” Trump’s verdict. Mr. Meadows’s contention is that the protective umbrella now extended to former presidents ought to cover their erstwhile staff, as well. He writes to the Nine that the “threat posed by prosecutions against federal officers for actions relating to their federal functions does not evaporate once they leave federal office.” He wants them to extend Trump v. United States beyond the presidency.Mr. Meadows wants the high court to move his case to federal from state court, a removal he argues is justified by his role as a formal federal employee. The former lawmaker from overwhelmingly white western North Carolina turned Trump’s aide-de-camp likely gauges that a federal jury is more likely to give him a fair shake than one drawn from Georgia’s majority-minority Fulton County, which comprises much of downtown Atlanta, and which President Biden in 2020 won by nearly 50 points.“The outer boundaries of the applicable immunities are underdeveloped,” Mr. Meadows writes to the Supreme Court with respect to the office he once held. That language suggests that presidential immunity could radiate outward, and in this case overhang what Mr. Meadows calls “one of the most important federal offices in the nation” — the president’s chief of staff.While Mr. Meadows does not go so far as to lay claim to the immunity now accorded his former boss, he could be preparing for a long appellate contest. That trajectory is suggested by the author of his petition to the Supreme Court — a former solicitor general and veteran high court advocate, Paul Clement. If the court hears the issue, it will likely be Mr. Clement who addresses the justices.Mr. Clement could consider citing a passage from Justice Antonin Scalia’s dissent in a case from 1988, Morrison v. Olson. Morrison concerned the constitutionality of the independent counsel. Scalia wrote that if the independent counsel was allowed free rein, “Perhaps the boldness of the President himself will not be affected — though I am not even sure of that. … But as for the President’s high-level assistants, who typically have no political base of support, it is as utterly unrealistic to think that they will not be intimidated by this prospect, and that their advice to him and their advocacy of his interests before a hostile Congress will not be affected.” Scalia added — he was the lone dissenter — that the independent counsel, a precursor to today’s special counsel, “deeply wounds the President, by substantially reducing the President’s ability to protect himself and his staff. That is the whole object of the law, of course, and I cannot imagine why the Court believes it does not succeed.” Mr. Meadows could make this case with respect to immunity. The Supreme Court’s 6-to-3 decision in Trump that a “former President has some immunity from criminal prosecution for official acts during his tenure in office” does not distinguish between state and criminal prosecution. Both can threaten the operation of what Alexander Hamilton in 70 Federalist calls a “vigorous” and “energetic” presidency. That means that Judge Scott McAfee at Fulton County will be required to undertake the same determinations in respect of official acts that are now on Judge Tanya Chutkan’s agenda at the District of Columbia.Mr. Smith and Ms. Willis — should she stave off disqualification for her affair with her special prosecutor and her extramural commentary — will argue before their respective judges that the acts at the core of their indictments are not protected under Chief Justice Roberts’s rule that the “separation of powers does not bar a prosecution predicated on the President’s unofficial acts.”The immunity issue has developed the least in Mr. Smith’s prosecution of Trump, for storing documents at Mar-a-Lago. That is hardly good news for the special counsel, though. Judge Aileen Cannon has disqualified him and dismissed the 40 charges against the 45th president. Before that ruling, Trump had requested that the case be frozen to consider immunity. Now, the defining issue is Mr. Smith’s appointment by Attorney General Garland If the 11th Circuit reverses Judge Cannon, reinstates Mr. Smith, and returns the case to her South Florida courtroom, she too will have to adjudicate the immunity issue. Trump will likely argue that his retention of the documents was tied to his duties as commander-in-chief. Mr. Smith can counter that his allegations date to after Trump’s presidency, which is why the case was brought in Florida, not the District of Columbia.

How Trump’s Immunity Win at the Supreme Court Threatens Fani Willis and Alvin Bragg — Not Just Jack Smith

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