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With Supreme Court’s immunity ruling, Trump could avoid trials before fall elections


We learned the initial effects of a Supreme Court ruling on presidential power. The court majority found this week that the president - any president after leaving office - cannot be prosecuted for official acts. In some cases, the president is absolutely immune. In other cases, it depends, but the court set down strict rules. Prosecutors may not even inquire into a president's motive for an official act. They can still pursue an indictment for an ex-president's private conduct, but they may not introduce any evidence of his official acts. This ruling relates to the former president's indictment for his effort to overturn his 2020 election defeat, but the court used its power to draft rules that apply in other situations, and that may include a case involving events from before Trump was even president - his conviction in New York State for falsifying business records. His lawyers have asked for a review of that case because the evidentiary record involved official acts. How so? Kim Wehle is a legal analyst who followed this trial.

KIM WEHLE: Well, most of the activity that gave rise to the conviction on those 34 counts were before he was president, but there was evidence. He - Hope Hicks testified. He signed some of the checks to Michael Cohen out of the Oval Office. And the court does indicate that public communications get a presumption of immunity. So I do think there're some grounds for challenging the conviction. It's not automatic, though, that it would be prejudicial error that would require reversal.

INSKEEP: The judge in New York state has delayed Trump's sentencing, which was scheduled for next week, so that they can look at the evidence in this. We've called up Will Scharf. He is one of the attorneys who represented Mr. Trump's immunity case before the Supreme Court, and he speaks with us now via Skype. Good morning, sir.

WILL SCHARF: Good morning, Steve.

INSKEEP: Some people will be baffled because the Stormy Daniels trial, the hush money trial, the business records trial, whatever you want to call it, was all about stuff that happened before Trump was even president. Why would it be an official act for the president to talk about this hush money payment that had taken place before his inauguration just because he was president at the time that he talked about it?

SCHARF: Well, the key allegations in that trial related to business records that were made in 2017, and crucially, there were a number of things introduced during that trial that we believe - as evidence - that we believe would fall under the Supreme Court's definition of official conduct in the presidential immunity case. So what we're talking about here, for example, would be communications through official White House channels. Those communications were introduced as evidence during that New York trial. And that has the potential to effectively corrupt that New York trial with official conduct that the Supreme Court has now held that it cannot be used in a prosecution even for private conduct because of its presidential immunity opinion.

INSKEEP: Some of the is, like, tweets. So is it your contention then that a president cannot be held responsible for defaming somebody, for doing anything else just because he's president at the time that he says something?

SCHARF: So the Supreme - a number of courts have previously held that President Trump's Twitter account while he was in the White House constitutes an official mode of communication. The Supreme Court held quite clearly that when the president comments on matters of public concern, that that can fall within the catchment of presidential immunity, that that can fall within the outer perimeter of a president's responsibilities as president. And the court was equally clear that evidence of such immune acts cannot be entered even to prove up charges relating to a president's private conduct.

So, again, this is a rapidly developing situation. In some respects, we wish that the New York trial hadn't been rushed to the extent that it was. That would have allowed us to get finality on a number of other legal issues, like this presidential immunity issue, before going to trial. Instead, we're in a situation of having to address this on essentially a post hoc basis. We obviously think that that New York trial verdict should be overturned for a number of reasons. This would be one of them.

INSKEEP: And we'll hear, of course, from the prosecutors on that in the days ahead. I want to ask a big-picture question here. This ruling has been determined - interpreted as saying a president can do anything, including, as you guys discussed during oral arguments, or in an earlier phase of this case, the president could order SEAL Team Six to assassinate a political rival, can't be tried for it. I know that some supporters of the ruling have said that's absurd, that would never happen. But it sure sounds to critics like it can. Wouldn't the president get away with that?

SCHARF: No, absolutely not. There are powerful constitutional and legal safeguards against that sort of dynamic from ever playing out.

INSKEEP: What are they?

SCHARF: Well, post hoc criminal prosecution has never been a key aspect or an aspect at all of our separation of powers. In that particular dynamic Uniform Code of Military Justice, the independent obligation of lower officers to follow the law to independently assess the legality of the orders that they're given, and just generally speaking, the constitutional system of separation of powers, which has safeguarded our Republic from exactly that sort of scenario playing out since the dawn of the republic - all of those come into play. The radical innovation here is the post hoc prosecution of a former president, which has obviously never happened before in the history of our country.

INSKEEP: I want to make sure that I understand what you're saying here for a layman when you talked about the Uniform Code of Military Justice. SEAL Team Six is not supposed to follow an illegal order, and you're saying that even though the president could not be prosecuted later, it's still an illegal order, and they are not allowed to follow it. Is that correct?

SCHARF: That's correct. And for giving such an order, a president could obviously and should be swiftly impeached and convicted and removed from office. There's a reason that a scenario like that has never played out in American history, which is that we have powerful constitutional checks in place to prevent presidents from committing those sorts of dastardly acts. What - again, the radical innovation here is the attempt to prosecute a president for his official conduct after he leaves office, which has never happened before in American history.

INSKEEP: I just want to just ask very quickly in the minute we have about definition creep. I understand what you're saying. I understand...


INSKEEP: ...Exactly the distinction. Just because he can't be tried later, it's still illegal conduct. And yet I can imagine this particular former president back in office or really any former - any president in office going to the Justice Department and saying, I am absolutely immune from this discussion, and I am telling you to do something, and it's obviously not a crime because I told you that I am immune. Why wouldn't that prevail?

SCHARF: Well, first of all, we believe that immunity, it's core to the constitutional separation of powers. We believe that this is a doctrine that has essentially existed since the ratification of the Constitution, since the American republic came into being, as it's currently constituted. The sorts of conversations that you're talking about, I mean, they've never happened before. This has never been a problem before in American history, and we don't see that arising in the future. All the Supreme Court really did here was recognize a system that we believe naturally follows from the U.S. Constitution, from the executive vesting clause of Article II of the U.S. Constitution and from the separation of powers that's core to our constitutional system.

INSKEEP: OK. Will Scharf, congratulations on winning your Supreme Court case, and thanks for taking the time to talk about it today. Really appreciate it.

SCHARF: Thanks for having me. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Steve Inskeep is a host of NPR's Morning Edition, as well as NPR's morning news podcast Up First.