How the Supreme Court’s immunity ruling can help Donald Trump fight off all the criminal charges against him
By Paula Reid and Casey Gannon, CNN
(CNN) — Former President Donald Trump’s legal team is expected to use Monday’s historic Supreme Court decision granting him partial presidential immunity to attack the evidence against him in all four of his criminal cases, according to multiple sources familiar with their strategy.
The legal team hailed the 6-3 decision penned by Chief Justice John Roberts as a “major victory,” arguing it provides new avenues for Trump to defend himself in the two pending federal cases against him, as well as his state prosecution in Georgia, and challenge his conviction on 34 state felony charges in New York.
The historic ruling from the high court said that Trump enjoys “absolute” presidential immunity for “his core constitutional powers,” but that he “enjoys no immunity for his unofficial acts, and not everything the President does if official.”
While a lot of attention has been focused on how the opinion bars prosecution for certain acts, the Trump legal team sees their biggest advantage in the court’s prohibition against using official acts as evidence.
The majority ruled that evidence about official acts cannot be introduced “even on charges that purport to be based only on his unofficial conduct.” The Trump team is hopeful that language can be used to undermine the charges that survive the court’s immunity parameters.
Mar-a-Lago classified documents case
Trump’s lawyers believe the court’s ruling could have the biggest impact on the Mar-a-Lago classified documents case, according to a source.
In Florida, Trump was indicted by a federal grand jury on over 30 felony counts of unlawfully retaining national defense information and obstruction for allegedly attempting to interfere with the government’s attempts to retrieve the materials.
His lawyers plan to argue that the Supreme Court opinion requires the district court to exclude evidence related to Trump’s time in office and how the classified documents came into his possession and allegedly ended up at his golf club in Bedminster, New Jersey, his Mar-a-Lago estate and at least one storage space. They will argue these are officials acts that would be shielded by the presidential immunity outlined in Roberts’ opinion, according to a source familiar with the strategy.
Jessica Levinson, a professor of Constitutional law at Loyola Law School, called the strategy “super creative,” but said there are flaws in the argument.
“I don’t blame them, of course they should make that type of argument,” Levinson said. “I think it has problems, in the sense that Roberts didn’t say absolutely everything you do while in office is an official act.”
Levinson said that the initial question is when it comes to taking classified documents out of the Oval Office, the argument is whether a person has constitutional or statutory authority to do so.
“It seems to me to stretch the opinion beyond its breaking point,” she said.
The federal judge overseeing that case, Aileen Cannon, has yet to hear arguments over whether the case can be tossed on presidential immunity.
Cannon, who has taken months to decide a number of pre-trial disputes, has also yet to set a trial date in the case.
Challenging the New York hush money conviction
Trump’s lawyers have already signaled that they will use the Supreme Court’s ruling in Trump v. US to try to overturn his conviction in New York on 34 felony counts related to a hush money payment scheme he helped facilitate ahead of the 2016 presidential election.
On Tuesday, Judge Juan Merchan delayed Trump’s July 11 sentencing date until September to brief the court on how they believe the court’s decision applies to the New York case.
Trump’s legal team is expected to use the opinion to challenge specific evidence used at trial that could fall under “official acts,” including portions of former White House aide Hope Hicks’ testimony and tweets from when Trump was in office, according to a source familiar with their thinking.
“Even though you’re the president and you speak to somebody employed by the White House, not every conversation you have is an official act,” Levinson said.
Back in April, the Trump team petitioned to delay the trial until after the Supreme Court ruled on Trump’s immunity claims. Merchan denied that request but the ruling appears to change the calculus.
Trump’s team had previously said they would challenge his conviction on appeal, and the new opinion has already provided a reprieve to the former president in that matter.
Federal election subversion case
A source familiar with the Trump team’s legal strategy tells CNN they are confident that Monday’s opinion will result in the entire 2020 election subversion case brought by special counsel Jack Smith getting tossed out.
But the Supreme Court deferred to US District Judge Tanya Chutkan, who is overseeing the case, to determine which allegations in Smith’s indictment would be barred under the decision and the opinion said that additional briefing will be needed for the trial court to do so.
The high court’s decision could undercut the part of the indictment related to Trump’s pressure on Justice Department officials, especially Jeffrey Clark, to help him after the election. That kind of direction to his subordinates in the executive branch would be immune from prosecution and cannot be part of the prosecutors’ case going forward.
Proceedings in that case are not expected to resume until early August.
Trump’s team will use the court’s opinion to fight evidence in the case like meetings he had with his top advisers and Vice President Mike Pence in an effort to undermine Smith’s ability to prove the charges that are still standing after Chutkan completes her analysis.
Levinson said that Trump’s team is on a lot “stronger” ground here in this argument.
“I read the majority as putting their thumb on the scale so that a lot of those communications look like official acts, and so there is at least the presumption of immunity,” Levinson said.
Though the ruling technically allows Smith’s prosecution to move forward, what it tasks Chutkan with doing makes it increasingly unlikely that a trial can get underway before the November election.
Georgia Election Subversion Case
The high court’s ruling could also affect the state-level election subversion charges Trump is facing in Fulton County, Georgia.
The Georgia case has been on pause and is in legal limbo as an appeals court in the state considers an effort by Trump and several other co-defendants to disqualify District Attorney Fani Willis, who brought the case, over concerns about alleged ethical lapses.
Trump’s lead attorney in his Georgia case, Steve Sadow, argued in January that the charges should be dismissed under presidential immunity.
If Willis is ultimately permitted to remain on the case, proceedings at the trial-level court would be allowed to resume – meaning Fulton County Judge Scott McAfee would have to go through the same analysis on presidential immunity that the US Supreme Court is requiring in the federal election subversion case.
Prosecutors had been waiting for the Supreme Court to weigh in before responding to Sadow’s motion.
Defense attorneys in the Georgia case say any decision from McAfee on presidential immunity would be subject to appeal, potentially all the way back up to the US Supreme Court. Other issues, like the Supremacy Clause, could also come into play on appeal.
A source familiar with the Trump team strategy said that if the Georgia case goes forward, it likely would happen after the other cases have already been litigated and the team would have a roadmap for how judges have applied the Supreme Court opinion will apply to this case.
“The Georgia case is in a lot of ways a state analog to the federal case, but the question of whether or not Trump has immunity is a federal constitutional question,” Levinson said.
CNN’s Zach Cohen, Devan Cole and Katelyn Polantz contributed to this report.
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