Alvin Bragg’s Triumph Could Backfire at the Supreme Court and Make Rockier Jack Smith’s Path to a Trump Conviction
The district attorney’s convictions could focus the minds of judges and justices on the precedent of presidential prosecution.
President Trump’s conviction on all 34 counts in his hush money case — a victory for District Attorney Alvin Bragg — could yet boomerang on Special Counsel Jack Smith’s own efforts to convict the 45th president on an additional 44 charges handed up in federal courts in the districts of Florida and Columbia.
While the first guilty verdict brought in against an American president could put the wind in Mr. Smith’s sails after a season of litigation stagnation, it holds some potential dangers for the prosecutor as well. The conviction could focus the minds of judges and justices on the precedent of presidential prosecution.
The verdict at New York County comes as the United States Supreme Court is weighing Trump’s claim that presidents are entitled, in perpetuity, to “absolute” immunity for official acts they undertook while in office. The special counsel argues that there is no such immunity, and that criminal behavior — like, say, conspiring to overturn the result of an election — is always prosecutable.
The hush money verdict is not yet directly threatened by the immunity question. Trump appears to have conceded that the acts involved were private. Judge Juan Merchan ruled that his attorneys did not raise the issue in a timely fashion and that many of the facts of the case concerned running for office, rather than holding it.
A federal judge, Alvin Hellerstein, has ruled that, in respect of the payments to an adult film star, Stormy Daniels, the “evidence overwhelmingly suggests that the matter was a purely a personal item of the President — a cover-up of an embarrassing event. Hush money paid to an adult film star is not related to a President’s official acts.”
Still, the justices could find that the logic of Trump’s argument for immunity gains new force in light of his conviction. The 45th president’s brief to the high court warned that liability to prosecution could condemn a president to “years of post-office trauma at the hands of political opponents. The threat of future prosecution and imprisonment would become a political cudgel.”
Mr. Smith would respond that the threat of criminal prosecution for official acts is not a credible threat to what Justice Antonin Scalia called the “boldness of the president,” because it will happen only rarely. At oral arguments before the Supreme Court, though, one of the liberal lions, Justice Ketanji Brown Jackson, acknowledged a “very legitimate concern about prosecutorial abuse.” Will Mr. Bragg’s boast diminish or deepen that concern?
Trump’s attorney at those oral arguments, John Sauer, is warning the court that if Mr. Smith has his way, “every current president will face de facto blackmail and extortion by his political rivals.” A state conviction by an elected prosecutor could make that prediction more credible to the justices who will determine how widely to chart the circumference of presidential protection.
There are limits, though, to what the Nine could do for Trump. Justice Neil Gorsuch’s argument that a cramped view of immunity would create an incentive for “presidents to try to pardon themselves” is a hypothetical that would only cover what the Constitution calls “Offenses against the United States,” meaning federal crimes, not state ones.
Could the Supreme Court itself hear an appeal of Mr. Bragg’s conviction? The case would have to make its way through New York’s appellate system — the tenets of federalism mandate that, in all but the rarest of circumstances, federal courts will only intervene in state prosecutions as a last result. Trump would also have to argue that there is a federal issue at stake that warrants federal judicial consideration.
Trump, though, could be helped by the unusual — almost unprecedented — nature of Mr. Bragg’s case, in two ways. First, the district attorney’s use of federal election law — violations of the Federal Election Campaign Act — as a possible predicate for securing a state crime conviction. While the jury was not required to find Trump guilty on that head, it could emerge as a hook on which to hang an appeal.
Trump could also argue that the prosecution as a whole violated his federal rights. The wide berth for a conviction afforded by the jury instructions, say, could be spun up into an argument that appeals to the constitutional requirements in respect of due process and impartiality of the jury.
The 45th president could also contend that the construction of the charges against him are so bespoke and unprecedented as to amount to a selective prosecution, in the sense that Lavrentiy Beria was using when he said, “Show me the man, I’ll show you the crime.”
https://www.nysun.com/article/alvin-braggs-triumph-could-backfire-at-the-supreme-court-and-make-rockier-jack-smiths-path-to-a-trump-conviction
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