Politics
Column: Will Trump's conviction survive the Supreme Court's immunity ruling? It's complicated
It was only hours after the Supreme Court issued its staggering term-ending opinion on presidential immunity when Donald Trump invoked it in an attempt to set aside his criminal conviction in New York.
On the surface, the effort would seem ill-fated and even brazen.
The opinion made a top-line distinction between “official actions” — which are either immune or presumed immune from criminal prosecution — and “unofficial actions,” which are not. And it’s hard to imagine more prototypically unofficial actions than those of which Trump was convicted in the New York case. While still running for president, Trump devised a scheme to suppress stories of his alleged trysts — in particular with the adult film actor Stormy Daniels — and falsified business records to further the cover-up.
Most of the critical conduct took place before Trump was in office, the exception being the payments to his fixer, Michael Cohen, that generated the false paperwork. And the reimbursement of Cohen from a personal bank account was patently unofficial conduct even though it coincided with Trump’s presidency.
So Judge Juan M. Merchan, who presided over the trial, might be expected to make quick work of Trump’s effort to shoehorn the conviction into the sphere of “official action” for which the court prescribed immunity.
In fact, however, the court’s opinion is strewn with mines and sinkholes that Trump might be able to use to gain a new trial or at least render his conviction provisional for an extended period. These facets of the opinion are part and parcel of its enormous scope and overreach, all to protect a party of exactly one: the only president ever to be charged with a crime.
The court’s revolutionary holding places the president largely outside the reach of criminal law, but the conservative majority wasn’t content to stop there. Its expansive guidance “for the ages,” as Justice Neil M. Gorsuch put it at oral argument, dictates that a jury may not even consider a president’s official acts as evidence to prove a crime involving unofficial conduct.
The court’s reasoning here is particularly threadbare, simply asserting that allowing evidence of official actions would undo the protections of immunity, which the conservative majority considers necessary to ensure a nimble and vigorous presidency. Yet it makes little sense to suggest that a president would be constrained by the prospect that a jury might one day hear about their official actions. Most official actions are public anyway, and those that aren’t can be protected by executive privilege and other means when there is a particular need to to so.
This is where Justice Amy Coney Barrett parted with her fellow conservatives, noting that “the Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable.”
In the context of Trump’s motion to set aside his New York conviction, a fair-minded court should have little trouble concluding that the conduct at issue was unofficial and therefore not subject even to the generous immunity protections prescribed by the justices. However, some of the evidence presented at trial at least arguably concerned official conduct, particularly under the Supreme Court’s wide-ranging, categorical definition of the term.
Most notably, the jury heard testimony from Hope Hicks about a conversation she had with Trump in 2018, when she was the White House communications director, about a report on Cohen’s hush money payments to Daniels and its public opinion repercussions. Prosecutors described Hicks’ testimony, which ended with her breaking down in tears, as “devastating.”
So was Trump’s conversation with Hicks in the White House “official conduct” that, under the immunity opinion, never should have been presented to the jury? And if so, do the convictions have to be set aside?
Those questions are far from straightforward. The answers depend not only on how the Hicks conversation is characterized but also on a thicket of procedural issues. Those include whether Trump may have waived the issue, whether any waiver applies under the Supreme Court’s holding and whether any error in allowing the testimony could be deemed harmless given the strength of the rest of the evidence.
Trump’s conviction may well survive the Supreme Court ruling in the end, but getting to that point won’t be quick or simple. Moreover, Merchan’s ruling is likely to be appealed to higher courts in New York and eventually the U.S. Supreme Court. That prospect could well temper the analysis of lower courts that now understand the breadth and zeal of the justices’ determination to shield Trump from accountability.
It appears as if the Supreme Court has dealt Trump not just a get-out-of-jail-free card but a whole deck of them, allowing him to contest and delay multiple facets of the nearly 100 criminal counts against him. If it turns out that he can use it to his advantage in New York, where he stands already convicted of manifestly personal conduct, it’s hard to imagine a case where he can’t.
Harry Litman is the host of the “Talking Feds” podcast and the “Talking San Diego” speaker series. @harrylitman
Politics
Trump Signs Executive Order in Attempt to Delay TikTok Ban
President Trump signed an executive order on Monday to delay enforcing a federal ban of TikTok for 75 days, even though the law took effect on Sunday and it is unclear that such a move could override it.
The order, one of Mr. Trump’s first acts after taking office, instructs the attorney general not to take any action to enforce the law so that his administration has “an opportunity to determine the appropriate course forward.” The order is retroactive to Sunday.
As he signed the order, Mr. Trump told reporters that “the U.S. should be entitled to get half of TikTok” if a deal for the app is reached, without going into detail. He said he thought TikTok could be worth a trillion dollars.
The order could immediately face legal challenges, including over whether a president has the power to halt enforcement of a federal law. Companies subject to the law, which forbids providing services to Chinese-owned TikTok, may determine that the order does not provide a shield from legal liability.
The federal law banning TikTok, which is owned by ByteDance, mandated that the app needed to be sold to a non-Chinese owner or it would be blocked. The only workaround provided by the law is a 90-day extension if a likely buyer is found. Even then, it is unclear if that option is viable, given that the law is already in effect. The law also restricts how much of a TikTok stake can remain under foreign ownership.
By seeking to override the federal law, Mr. Trump raised serious questions about the limits of presidential power and the rule of law in the United States. Some lawmakers and legal experts have expressed concerns about the legality of an executive order, particularly in the wake of a Supreme Court ruling that upheld the law on Friday and the national security concerns that prompted legislators to draft it in the first place.
Former President Joseph R. Biden Jr. had signed the law, which passed overwhelmingly in Congress last year, forcing ByteDance to sell TikTok or face a ban. TikTok had faced security concerns that the Chinese government could use it to spread propaganda or collect U.S. user data. The law levies financial penalties on app stores and cloud computing providers unless they stop working with the app.
TikTok briefly went dark for U.S. users over the weekend, but returned Sunday following Mr. Trump’s social media announcement that he was planning an executive order. While the app was working again for people who have already downloaded it, it vanished from Google’s and Apple’s app stores on Saturday and remained unavailable on Monday.
Mr. Trump’s efforts to keep TikTok online have major implications for its users. The app has reshaped the social media landscape, defined popular culture and created a living for millions of influencers and small businesses that rely on the platform.
In the executive order, Mr. Trump said that his constitutional responsibilities include national security. It says he wants to consult with advisers to review the concerns posed by TikTok and the mitigation measures the company has taken already.
The administration will “pursue a resolution that protects national security while saving a platform used by 170 million Americans,” according to the order, which called the law’s timing “unfortunate.”
The attorney general will send letters to companies covered by the law to tell them “that there has been no violation of the statute” and they won’t be held liable for providing services to TikTok during the 75 days, the order said.
That might not be enough reassurance, some legal experts said.
“I don’t think it’s consistent with faithful execution of the law to direct the attorney general not to enforce it for a determinate period,” said Zachary Price, a professor at the University of California College of the Law, San Francisco. “And even if that’s OK, the president doesn’t have the authority to eliminate the law itself and remove liability for the people who violate it while it’s not being enforced.”
TikTok and Apple did not immediately respond to requests for comment. Google declined to comment.
TikTok’s ties to China have long raised national security concerns, including with Mr. Trump. Near the end of his first term in 2020, Mr. Trump issued an executive order that would bar app stores from making TikTok available for download. He then pushed for an American company to buy the app, but those efforts fizzled when he lost re-election.
Last year, the effort was revived by Congress and Mr. Biden signed it into law in April. The law targeted app stores, like those run by Apple and Google, and cloud computing companies. It said those companies could not distribute or host TikTok unless the app was sold to a non-Chinese owner by Jan. 19.
Mr. Trump then reversed positions. He joined the app in June and said on television in March that there are young people who would go “crazy” without TikTok.
“I guess I have a warm spot for TikTok that I didn’t have originally,” Mr. Trump said as he signed executive orders Monday evening.
TikTok challenged the law in federal court, saying it impeded its users’ rights to freedom of speech as well as the company’s own First Amendment rights. The Court of Appeals for the D.C. Circuit upheld the law in December. TikTok appealed to the Supreme Court, which on Friday also upheld the law.
TikTok and some Democrats made a last-ditch effort to stop the law from taking effect. But on Saturday, TikTok stopped operating in the United States and disappeared from Apple’s and Google’s app stores a few hours before midnight. Users grieved its disappearance.
On Sunday morning, Mr. Trump announced on Truth Social that he would “issue an executive order on Monday to extend the period of time before the law’s prohibitions take effect, so that we can make a deal to protect our national security.” He said he would not punish companies that had violated the law to keep the app online.
Hours later TikTok restored its service to U.S. users and welcomed them back with a message: “As a result of President Trump’s efforts, TikTok is back in the U.S.!”
As he signed executive orders in the Oval Office, Mr. Trump was asked why he had changed his mind about the app.
“Because I got to use it,” he said.
Tripp Mickle and Nico Grant contributed reporting.
Sapna Maheshwari contributed reporting
Politics
Nancy Pelosi slams Trump’s ‘shameful’ pardons of Jan. 6 defendants
Former Speaker of the House Nancy Pelosi, D-Calif., slammed President Donald Trump on Monday night for pardoning more than 1,000 people involved in the Jan. 6, 2021, riots.
Trump signed pardons for approximately 1,500 defendants who were charged with crimes stemming from the attack on the U.S. Capitol, fulfilling a promise he made in December to act quickly and pardon them.
Trump also commuted the sentences of six people on Monday, including the leaders of the Oath Keepers and Proud Boys extremist groups.
BIDEN TAKES DEPARTING JAB AT TRUMP, SAYS HE WAS A ‘GENUINE THREAT TO DEMOCRACY’
But Pelosi called the move “shameful,” and said to remember the “courage” of law enforcement “heroes” who “ensured that democracy survived.”
“The President’s actions are an outrageous insult to our justice system and the heroes who suffered physical scars and emotional trauma as they protected the Capitol, the Congress and the Constitution,” Pelosi, who didn’t attend Trump’s inauguration Monday, said in a statement posted to X.
“It is shameful that the President has decided to make one of his top priorities the abandonment and betrayal of police officers who put their lives on the line to stop an attempt to subvert the peaceful transfer of power,” Pelosi said.
DOJ SEEKS TO BLOCK JAN. 6 DEFENDANTS FROM ATTENDING TRUMP INAUGURATION
The Justice Department reported that approximately 140 police officers were assaulted during Capitol storming on Jan. 6, 2021. That included law enforcement members from both the U.S. Capitol Police and about 60 from the Metropolitan Police Department.
Trump announced earlier on Monday at his inaugural parade at the Capital One Arena in Washington, D.C., he would issue pardons for the so-called “hostages.”
“Tonight I’m going to be signing on the J6 hostages, pardons to get them out,” Trump said at the parade at Capital One Arena. “I’m going to the Oval Office and we’ll be signing pardons for a lot of people.
So far, judges or a jury after a trial have convicted roughly 250 people who faced charges for their involvement in the riot, and more than 1,000 had pleaded guilty to crimes as of January.
The Associated Press contributed to this report.
Politics
Trump immediately flexes presidential powers: 1,500 pardons and a raft of executive orders
President Trump quickly flexed the sweeping powers of the presidency following his second inauguration at the Capitol on Monday, signing a slate of executive orders that would radically alter U.S. policy if allowed to stand.
He also pardoned or commuted the sentences of all of his loyalists — more than 1,500 people — who stormed the same Capitol building in a failed attempt to illegitimately keep him in power four years prior, repeatedly referring to them as “hostages.”
“We hope they come out tonight, frankly,” Trump said during an evening signing ceremony at the Oval Office — a reference to the fact that many of those defendants were in prison for serious offenses such as assaulting police officers.
Trump’s orders reflected an aggressive start to the conservative agenda he promised on the campaign trail, aimed at reining in illegal immigration, strengthening U.S. manufacturing and the broader economy, rolling back LGBTQ+ rights, reinforcing American dominance abroad and bending the sprawling federal bureaucracy to his will.
At an evening rally in Washington, D.C., that was held in lieu of an outdoor parade because of frigid temperatures, Trump sat at a desk and used black markers to sign nine orders.
The first, he said, undid about 80 “destructive, radical actions” made by President Biden — having to do with issues including immigration, the COVID-19 pandemic, voting rights, “diversity, equity and inclusion” initiatives, protections for LGBTQ+ people, the operation of prisons by private entities, tackling climate change and other environmental protections.
The other orders withdrew the U.S. from the Paris Climate Agreement and informed the United Nations of that decision; placed freezes on new federal regulations and most federal hiring while his administration gets into place; mandated federal workers return to in-person work full time; and sent directives to federal agencies to protect free speech, end the “weaponization of government” for political purposes, and find ways to decrease inflation and high costs for average Americans.
Trump said he also would later sign other orders — such as one mandating that agencies preserve all records pertaining to his own prosecution on various federal charges under the Biden administration. And he renewed campaign promises to take other actions, such as ending federal taxes on tipped wages.
Trump concluded the event by tossing the markers he’d used to sign the orders into the crowd, to big cheers from his supporters.
Soon after, Trump was back in the Oval Office signing more orders and the pardons. One order announced the withdrawal of the U.S. from the World Health Organization, while another purported to end the long-established constitutional guarantee of U.S. citizenship for anyone born on U.S. soil, regardless of their parents’ immigration status.
Trump commuted the sentences of 14 people — including some of the highest-profile Jan. 6 defendants — to time served, and granted full pardons to everyone else convicted of offenses from that day. The Justice Department recently estimated that it had charged more than 1,500 people, including 590 with assaulting, resisting, impeding or obstructing law enforcement.
As of November, nearly 1,000 had pleaded guilty, more than 200 had been found guilty at trial, and more than 600 had been sentenced to time behind bars.
Trump’s pardons followed a last-minute decision by Biden to flex the same power on his way out of the White House by pardoning members of Congress and their staffers who had investigated the Jan. 6, 2021, attack on the Capitol, as well as other former U.S. officials who have drawn Trump’s ire for having challenged his authority in the past.
The orders, which Trump also described in some detail in his inaugural speech Monday morning, reflected just how starkly divided the nation has become politically — and the degree to which Trump feels emboldened to shirk tradition and legal precedent as the first president to win a nonconsecutive second term in the White House in the last 132 years.
While promising the return of a “golden age of America” under his watch, Trump declared two national emergencies — one to do with southern border crossings, and the other to do with energy independence. He promised several measures to address each, including closing the border entirely to asylum seekers — in part by reinstating his “Remain in Mexico” policy and sending military troops to the border — and by clearing away federal energy regulations so that oil and gas producers can “drill, baby, drill.”
In an early sign of the policies being implemented, immigrants with asylum claims at the southern border were told Monday that scheduled interviews they had with U.S. Customs and Border Protection had been canceled.
Trump said he would declare that there are only “two genders” — a swipe at transgender people that echoed attacks by Trump’s campaign — and revoke regulations intended to transition the nation toward electric vehicles. He said he would institute many new tariffs on foreign goods, launch a new “external revenue service” to collect the associated revenue, and launch a new Department of Government Efficiency to reduce waste — the last of which would be led by Elon Musk, the owner of X and Tesla and the world’s richest man.
Trump also said he would rename the Gulf of Mexico as the Gulf of America, and take the Panama Canal from Panama.
“With these actions, we will begin the complete restoration of America and the revolution of common sense,” Trump said during his inauguration speech in the Capitol Rotunda. “It’s all about common sense.”
Whether Trump’s directives will survive and how quickly they will be implemented remains unclear. Survival of the most controversial and legally dubious decrees will depend on the courts, experts said. Implementation will depend in part on how quickly Trump can get his Cabinet appointments confirmed by the Senate and stand up his new government, they said.
Advocates for immigrants, LGBTQ+ people and other targeted groups joined liberal leaders — including in California — in promising to fight back against Trump’s agenda, including in court if necessary.
California Atty. Gen. Rob Bonta said last week that his office would be watching what Trump does Monday and responding in kind — including with the help of pre-written legal briefs anticipating certain actions that the state will argue in court are illegal.
San Francisco City Atty. David Chiu said Monday that Trump had delivered a “dark, dangerous and authoritarian vision for our country,” and that his office would be analyzing Trump’s executive orders in coming days and weeks and “will do everything in our power to protect San Francisco and our residents from illegal federal action.”
The Jan. 6 pardons could result in swifter action, and less resistance — given that a president’s pardon powers are generally unquestioned.
Attorneys for some of the imprisoned defendants said before the inauguration that they were watching Trump’s actions closely and would be poised to respond with legal motions seeking their clients’ immediate release.
In addition to the House committee that investigated the Jan. 6 attack, Biden also pardoned Dr. Anthony Fauci, former director of the National Institute of Allergy and Infectious Diseases who helped lead the nation’s response to the COVID-19 pandemic, and Mark A. Milley, a former chairman of the Joint Chiefs of Staff who has called out Trump’s handling of the insurrection.
All had been threatened with potential criminal charges and investigation by Trump and his supporters. Biden called them public servants who “have served our nation with honor and distinction and do not deserve to be the targets of unjustified and politically motivated prosecutions.”
Trump called Biden’s pardons “unfortunate” and “disgraceful.”
Rep. Bennie Thompson (D-Miss.), the former chair of the Jan. 6 committee, issued a statement on behalf of the committee’s former members, in which he said they were grateful to Biden.
“We have been pardoned today not for breaking the law,” Thompson said, “but for upholding it.”
One of the committee members, Sen. Adam B. Schiff of California, said he was proud of the committee’s work and believed Biden’s grant of pardons to its members was “unnecessary, and because of the precedent it establishes, unwise.”
However, Schiff — one of Trump’s favorite targets for derision — said he also understood why Biden had issued the pardons “in light of the persistent and baseless threats issued by Donald Trump and individuals who are now some of his law enforcement nominees.”
The exercise of presidential powers on a new president’s first day in office — or his last, in Biden’s case — is not new.
Presidents have often issued pardons on their way out of office, and they have always fought to meet campaign promises and show policy results quickly.
The notion that a president should be judged by their accomplishments within their first “100 days” in office has been a “touchstone” of American politics since at least the administration of President Franklin D. Roosevelt, Congressional Research Service analyst Ben Wilhelm wrote in a formal analysis of executive orders and presidential transitions last year.
However, in recent decades, the number of executive orders issued early on in new administrations has increased, under both Democratic and Republican presidents, Wilhelm noted. That is in part as incoming presidents have issued orders undoing the orders of their predecessors.
Biden did it to undo orders by Trump. On Monday, Trump did it to undo orders by Biden.
Trump on Monday suggested his “Day 1” actions were especially warranted. He said he had been saved by God from assassination attempts during the campaign so that he could “make America great again,” and repeatedly cited a “mandate” from voters to carry out his agenda — suggesting his victory over Biden in November was monumental.
Trump did amass a sizable victory in the electoral college, and swept to victories across the nation’s swing states. However, his popular vote margins — both as a percentage of overall votes and by raw votes — were historically small.
Out of more than 152 million votes cast, Trump won by just over 2 million. And he won fewer than 50% of the total vote — at 49.9%, compared to 48.4% won by Vice President Kamala Harris, according to the Associated Press. That means that while Trump does enjoy massive support for his agenda, there are also nearly as many Americans who voted against him and that agenda.
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