A wild day of often outlandish legal arguments and tabloid tales could not obscure the stakes for the country.
Only Donald Trump could conjure a two-city legal spectacle that gave equal billing to the deepest thoughts of George Washington and a former National Enquirer publisher known for lurid celebrity scandals and dubious UFO sightings.
The former president was the epicenter of attention Thursday during key testimony from media magnate David Pecker at his first criminal trial in New York and, in absentia, at a US Supreme Court hearing devoted to his audacious claims that the president should have total, king-like immunity from prosecution.
Legal arguments and references spanned two-and-a-half centuries, stretching back to how the founders envisaged the presidency to Trump’s alleged attempts to sway the 2016 and 2020 elections through nefarious means.
But while evidence harked back to the past, the implications of both cases weigh heavily on the future — given their capacity to shape November’s election, a possible second Trump administration and the presidency itself for eons to come.
At the US Supreme Court, nine justices — three appointed by Trump — wrestled over the presumptive Republican nominee’s staggering claim that presidents must have absolute immunity from prosecution, which appears to directly refute the founders’ suspicion of unaccountable monarchical power. The case arises from special counsel Jack Smith’s prosecution of the ex-president over his attempts to overturn the 2020 election, which he falsely claims he won. And the case carries grave implications for how Trump would behave if he wins a second term in November and believes he can’t be charged with any crimes he might commit in office.
Trump delivered an ominous warning after the hearing that “very powerful presidential immunity is imperative or you practically won’t have a country anymore.” His sentiments seemed to be what Justice Ketanji Brown Jackson had in mind when she pushed back at Trump’s attorney, who had warned a president who lived in fear of prosecution for acts in office would be neutered. Jackson said that under such circumstances, the Oval Office could become “a seat of criminality.”
She added: “You seem to be worried about the president being chilled. I think that we would have a really significant opposite problem if the president wasn’t chilled.”
Jury hears about a ‘catch-and-kill’ scheme
The subject matter was more salacious at Trump’s first criminal trial, 230 miles away in New York where Pecker testified for hours. He spoke about a “catch-and-kill” scheme allegedly used by Trump to stifle negative stories about his personal life and a hush money payment to an adult film star that the then-GOP nominee didn’t want voters to know about before the 2016 election. Trump’s attorneys began their cross-examination of Pecker Thursday afternoon and will continue on Friday.
Prosecutors have framed the trial as more than a simple case of falsifying business records — the offense with which Trump has been charged. “This case is about a criminal conspiracy and a cover-up, an illegal conspiracy to undermine the integrity of a presidential election, and then the steps that Donald Trump took to conceal that illegal election fraud,” prosecutor Matthew Colangelo told the jury during opening statements in the trial on Monday.
Trump’s supporters take a far less lofty view of the case, arguing that he’s being singled out because of who he is. They insist that the alleged business accounting irregularities should never have been charged, or at least not as felonies.
So far, the public, which ultimately will be asked to cast its verdict on all the legal drama in November, is yet to be convinced, according to a new CNN poll. Only 44% of Americans expressed confidence that the jury chosen for the case will be able to reach a fair verdict, with 56% more skeptical.
There is some cause for concern for Trump in another finding, however. While most voters currently backing Trump against President Joe Biden in the 2024 election say they will stick with him even if he is convicted of a crime, 24% say a conviction might cause them to reconsider their support — although most of those voters said they wouldn’t back Biden. The question did not ask about a criminal conviction resulting from any specific case. Trump faces four criminal cases, all in which he’s pleaded not guilty. The hush money case may be the only one to go to trial before the election, but it remains unclear how an acquittal or conviction in any of them could reshape the political environment.
The hush money case and Trump’s Supreme Court appeal provoke questions about whether and how a former president should be tried for undermining elections — the pillars of the US democratic system. Trump, like any other criminal defendant in the legal system he often blasts as unfair, enjoys the presumption of innocence until proven guilty. But the underlying theme of both prosecutions is an idea that Trump put his own ambitions above the vital need to preserve such institutions. And as with the additional Georgia election interference case and a federal one over his hoarding of classified documents in Florida, the accusations against Trump turn on his consistent unwillingness to abide by the rules and constraints that other Americans — and other presidents — have accepted.
This is why the cases have so much political significance. Were Trump not the presumptive nominee with an even chance of winning back the presidency, these questions would be more academic and exclusively relate to past conduct. But the results of Trump’s pending cases — and whether they even come to trial — could help decide the tone of a future presidency.
As he emerged from a long day of testimony in New York, Trump referred to his Supreme Court appeal and warned that unless the presidency enjoyed full immunity, it would be merely a “ceremonial” office. He claimed: “That’s not what the founders had in mind.” But his craving for a strongman’s presidency, however, directly contradicts the vision of one of the founders to whom he referred — Washington, who along with Benjamin Franklin, was mentioned in the oral arguments. Trump’s lawyers argued that Washington’s warning in his farewell address about the danger of political parties should help inoculate Trump from prosecution for election interference — although as CNN’s Zachary B. Wolf reported, they may have been selective with the necessary context.
Washington would be mystified by much about the modern world, but the first president would immediately recognize the dangers to democracy posed by the 45th. In a letter to the Marquis de Lafayette, from the 1787 Constitutional Convention in Philadelphia, Washington wrote that he felt compelled to return to public life to build a US governing system that could survive “anarchy and confusion” and would not be “dictated perhaps by some aspiring demagogue who will not consult the interest of his Country so much as his own ambitious views.”
Many Democrats are furious that the Supreme Court decided to hear what they regard as Trump’s frivolous appeal designed to forestall the possibility of a potentially damaging criminal trial — and possible conviction — before the 2024 election. His legal maneuverings may mean he doesn’t have to answer for his attempt to steal the 2020 election before the 2024 edition takes place.
But at the same time, Trump is using the privileges of appeals available to any defendant to their full extent. In the process, he is raising fundamental questions about the powers of the presidency and the US constitutional settlement that at some level can only be decided by the Supreme Court — regardless of the pressures of the electoral calendar.
George Conway, a conservative lawyer who has become a Trump critic and is now a major donor to Biden, argued that the justices needed to address the issue of presidential immunity prior to a potential new Trump term.
“Suppose on January 20, 2025, a man takes over in the White House who wants to seek retribution on his political enemies and who appoints an attorney general who would bring prosecutions against people who opposed this president in the past,” Conway told CNN’s Wolf Blitzer. “These are legitimate questions.”
Justice Neil Gorsuch, a Trump appointee, made this point in Thursday’s hearing: “I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives,” he said. “We’re writing a rule for the ages.”
It’s always hazardous to speculate how Supreme Court justices will rule based on their questioning in oral arguments. But the consensus of many legal experts on Thursday was that while Trump will likely lose on his claim of blanket presidential immunity, the court may recognize some distinct areas of immunity so that future presidents are not subject to politically motivated prosecutions. This could mean the case returns to lower courts for more litigation — a move that could delay the federal election trial for months, far beyond the November election. That’s significant because if he’s elected president again, Trump could appoint an attorney general who’d end the prosecution and he would escape accountability for his acts related to the 2020 election.
But Justice Amy Coney Barrett, another of Trump’s appointees, offered a potential compromise solution in getting Trump’s attorney, David Sauer, to agree that not all the ex-president’s behavior after the 2020 election constituted an official act that could be subject to immunity. This raised the possibility that prosecutors could draft a slimmed-down indictment as a basis for a trial to proceed more quickly.
As the intellectual debate unfolded on Trump’s unprecedented claims, the fact that the hearing was taking place at all was surreal.
The most head-spinning moment of the oral arguments came when Sauer was forced to acknowledge the logical extension of the ex-president’s position. “How about if a president orders the military to stage a coup?” liberal Justice Elena Kagan asked.
Sauer replied, “If it’s an official act, there needs to be impeachment and conviction beforehand” through Congress prior to any prosecution. Kagan then asked if Sauer believed such a coup would be an “official act.”
“On the way you described that hypothetical, it could well be,” he answered.
“That sure sounds bad, doesn’t it?” Kagan replied.
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