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Column: Will Trump's conviction survive the Supreme Court's immunity ruling? It's complicated

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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.

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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.

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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.

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Harry Litman is the host of the “Talking Feds” podcast and the “Talking San Diego” speaker series. @harrylitman

Politics

House unanimously votes to create Trump assassination attempt commission

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House unanimously votes to create Trump assassination attempt commission

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The House of Representatives unanimously voted to establish a bipartisan commission to investigate the attempted assassination of former President Donald Trump.

No lawmakers voted “no” nor “present,” and 416 voted “yes.” Ten Democrats and six Republicans did not vote.

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The task force will be comprised of seven Republicans and six Democrats, with the members likely being announced this week.

House GOP leaders raced the bill to the floor after the deadly shooting at Trump’s Butler, Pennsylvania, rally nearly two weeks ago. One attendee died, and two others were injured, with Trump himself getting shot in the ear and evacuated off the stage by the Secret Service.

TRUMP SHOOTING: TIMELINE OF ASSASSINATION ATTEMPT RAISES QUESTIONS ABOUT HOW GUNMAN EVADED SECURITY

Former President Donald Trump is seen with blood on his face surrounded by Secret Service agents as he is taken off the stage at a campaign event at Butler Farm Show Inc. in Butler, Pennsylvania, July 13, 2024. (Rebecca Droke/AFP via Getty Images)

The vote was bipartisan, as expected — the hours following the shooting prompted a flurry of bipartisan condemnations against political violence, as well as scrutiny of the security situation that allowed a 20-year-old gunman with a rifle onto a rooftop just outside the rally perimeter.

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“The security failures that allowed an assassination attempt on Donald Trump’s life are shocking. In response to bipartisan demands for answers, we are announcing a House Task Force made up of seven Republicans and six Democrats to thoroughly investigate the matter,” Speaker Mike Johnson, R-La., and House Minority Leader Hakeem Jeffries, D-N.Y., said in a joint statement on Tuesday. “The task force will be empowered with subpoena authority and will move quickly to find the facts, ensure accountability, and make certain such failures never happen again.”

FBI DIRECTOR WRAY REVEALS 5 KEY DETAILS ABOUT TRUMP SHOOTERS’ STASH OF EXPLOSIVES, WEAPONS

Speaker Johnson and Leader Jeffries

Speaker Mike Johnson and Minority Leader Hakeem Jeffries are leading the task force assembly as a bipartisan effort. (Getty Images)

The resolution was led by Rep. Mike Kelly, R-Pa., whose district the shooting took place in and who was in attendance but unharmed.

Johnson told Fox News Digital in an interview last week that he wanted the panel to reach a conclusion as soon as possible — in part, at least, “so that people don’t make up their minds about some conspiracy theory or some sinister plot.”

DETAILS ABOUT HOW TRUMP SHOOTER SCALED BUTLER RALLY ROOF EMERGE IN FBI DIRECTOR CHRISTOPHER WRAY TESTIMONY

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Rep. Mike Kelly on Capitol Hill

Rep. Mike Kelly led the resolution to establish the commission. (Anna Moneymaker/Getty Images)

“Some of those rumors have begun already, and we have to address that immediately,” he said “The idea of a task force is that we can have sort of a precision group or unit that goes to work on this immediately. It’ll be bipartisan and will have subpoena authority. I think that’s going to be very important to get the answers as quickly as possible.”

The bipartisan scrutiny of the security situation forced U.S. Secret Service Director Kimberly Cheatle to resign on Tuesday.

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Biden's address to the nation: 'I revere this office, but I love my country more'

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Biden's address to the nation: 'I revere this office, but I love my country more'

Saying, “I revere this office, but I love my country more,” President Biden formally announced the end of his bid for a second term in office with a nationally televised address from the White House on Wednesday evening.

Biden said that while his record was strong, he felt compelled to unite the Democratic Party and to throw his support behind Vice President Kamala Harris.

“I believe my record as president — my leadership in the world, my vision for America’s future — all merited a second term,” Biden said. “But nothing can come in the way of saving our democracy. That includes personal ambition.

“So I decided the best way forward is to pass the torch to a new generation. It’s the best way to unite our nation.”

Placing himself at the end of a long chain of American leaders, Biden mentioned presidents from George Washington to Franklin D. Roosevelt. Twice he noted that he was speaking from behind the Resolute Desk — a gift of Britain’s Queen Victoria that has been used by nearly every president since the 1880s.

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Biden’s family watched from just off camera, while hundreds of administration staff members attended a White House viewing party. Harris watched the address in Houston, where she was staying overnight after visiting the city’s emergency operations center for a briefing on recovery efforts following Hurricane Beryl.

Although the 11-minute speech did not mention Republican presidential nominee Donald Trump, implicit throughout was the threat Biden contends his opponent poses. (That claim stems largely from Trump’s attempt to reverse the results of the 2020 election, which he lost to Biden.)

“The defense of democracy, which is at stake, is more important than a title,” he said. “It’s not about me, it’s about you … your families, your futures. It’s about ‘we the people.’ We can never forget that and I never have.”

Biden gave a long list of his accomplishments, saying he had pulled the country out of “the worst economic crisis since the Great Depression” — caused by the COVID-19 pandemic — and signed laws that strengthened gun regulations and capped the price of prescription drugs for senior citizens.

He pledged to keep working hard in his final six months in office, saying he hoped to end the war in Gaza and bring home hostages held by Hamas; to strengthen NATO, in support of Ukraine and other nations, and to bring reforms to the U.S. Supreme Court.

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Toward the end of his remarks, he endorsed Harris. “She’s experienced. She’s tough. She’s capable,“ Biden said. “She’s been an incredible partner to me and the leader for our country.”

At one point he struck a highly personal note.

“Nowhere else on Earth could a kid with a stutter, from modest beginnings … one day sit behind the Resolute Desk, in the Oval Office, as president of the United States. Here I am,” he said. “That’s what’s so special about America. We’re a nation of promise and possibilities, of dreamers and doers, of ordinary Americans doing extraordinary things.”

Only last week, Biden had scoffed at the notion he would leave the race. Speaking at the NAACP’s national convention in Las Vegas, he called out to the audience: “So let me ask you, are you all in?” The loud response: “All in!” To which Biden retorted: “Because I’m all in!”

But just a day later, on July 17, Rep. Adam B. Schiff (D-Burbank) joined those calling on Biden to step aside, saying “it is time to pass the torch” to new leaders in the Democratic Party. Former House Speaker Nancy Pelosi (D-San Francisco) also reportedly informed Biden that she thought he could not win the Nov. 5 election.

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Political observers said the views of the two Californians were crucial to Biden’s decision, announced Sunday, to drop out of his rematch with Trump. Biden had been in Rehoboth Beach, Del., recovering from COVID-19 since last Thursday when he made the decision to withdraw.

He quickly threw his support behind Harris, saying that picking her as his running mate in 2020 was “the best decision I’ve made.” He added: “It’s time to come together and beat Trump.”

Democratic officials and rank-and-file members quickly coalesced around the vice president, making her the all-but-certain presidential nominee when the party holds its convention in Chicago, starting Aug. 19.

Harris also got good news from her campaign treasurer: She raised $81 million in the 24 hours after Biden announced that he would not seek another term — the largest campaign haul over that period in history.

The closest parallel to Biden’s speech in modern times came more than half a century ago, when President Lyndon B. Johnson used a televised address from the White House to say that he would not seek a second full term in the White House.

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Johnson spent all but the waning moments of a nearly 41-minute address, given in March 1968, to discuss America’s struggles in the Vietnam War, reiterating his offer to the North Vietnamese to begin peace talks.

He said that the nation had become too divided over the war in Southeast Asia. Given the momentous decisions he faced overseeing the war and peace talks, Johnson said, “I do not believe that I should devote an hour or a day of my time to any personal partisan causes or to any duties other than the awesome duties of this office — the presidency of your country.”

“Accordingly, I shall not seek, and I will not accept, the nomination of my party for another term as your president,” Johnson concluded.

By stepping back, Johnson opened the door to a hard-fought contest for the Democratic presidential nomination. Robert F. Kennedy appeared in a strong position to be the nominee after winning the California primary in June.

But Kennedy was assassinated at the end of his victory party in Los Angeles on June 5, 1968. Hubert Humphrey, Johnson’s vice president, went on to win the nomination. But in the fall, he lost a close election to the Republican nominee, Richard M. Nixon.

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‘Coup’ and ‘Cover-Up’: How the G.O.P. Is Reacting to the Harris Candidacy

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‘Coup’ and ‘Cover-Up’: How the G.O.P. Is Reacting to the Harris Candidacy

‘Unfit to serve’

‘Best interest’

‘Proof of life’

‘Far Left Democrats’

‘Resign’

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‘Less competent’

‘Coup’

‘Largest political cover-up’

‘25th Amendment’

‘Rigging’

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‘Where is Joe Biden?’

‘Border Czar’

‘Gaslighting and lying to each of us’

‘Wood chipper to democracy’

‘Who is running the show?’

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‘All the best’

While elected Democrats have been quick to rally around Vice President Kamala Harris after President Biden’s announcement that he would leave the 2024 presidential race, a vast majority of prominent Republicans have treated the development with suspicion or scorn.

A New York Times analysis of statements by Republican senators, representatives and governors found that their reactions to Ms. Harris’s presumptive candidacy and Mr. Biden’s withdrawal clustered around several themes, including the opinions that Mr. Biden must resign or that the events of the past few days amounted to election subversion or a bloodless coup. Recent polling suggests nearly 9 in 10 Americans believe Mr. Biden’s decision to step aside was the right one.

Several officials also suggested that Mr. Biden — who had been in Delaware recovering from Covid-19 but returned to the White House on Tuesday — had gone missing. A greater number made statements attacking Ms. Harris’s record, while a small handful posted positive or supportive comments. Emphasis in these quotations was added by The Times to highlight common themes in the statements.

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65 called Mr. Biden’s withdrawal a coup or said it amounted to election interference.

‘This is a coup of a puppet regime.’

‘While President Trump took a bullet for our democracy, the progressive democrats are taking a wood chipper to democracy by shredding the will of 14 million primary voters.’

‘Now the Democrats are rigging their *own* elections.’

These statements have tended to argue that Mr. Biden’s decision to end his candidacy was not his own, was not democratic or both. Many have mocked Democrats for positioning themselves as “defenders of democracy” in contrast to Republicans, following attempts by former President Donald J. Trump and his allies to overturn the results of the 2020 election.

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Some of this language began to bubble up among Republicans even before Mr. Biden announced that he would drop out. During the Republican National Convention last week, Chris LaCivita, a top adviser to Mr. Trump’s campaign, described the pressure on Mr. Biden to withdraw as an “attempted coup.”

97 said that Mr. Biden must resign or be ousted, or that he is unfit for office.

‘Today I’m demanding the Biden Harris cabinet invoke the 25th Amendment. If Biden isn’t capable of being a candidate, he’s not capable of being President.’

‘If Joe Biden is unable to serve another term, then he must resign right now. If he’s unfit to campaign, he should not have the nuclear codes — it’s that simple.’

‘If Joe Biden is unfit to run for re-election then he’s unfit to serve the remainder of his term.’

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Statements along these lines have primarily argued that if Mr. Biden is not able to run for a second term, then he is unfit to continue to serve now. Many said should step down from the presidency. Some have gone further, suggesting that the 25th Amendment should be invoked to remove Mr. Biden from office.

76 speculated about a high-level conspiracy in the White House about the condition of Mr. Biden’s health.

‘Kamala Harris was complicit in a massive coverup to hide and deny the fact that Joe Biden was not capable of discharging the duties of the office.’

‘The American people should fire every single politician that has been gaslighting and lying to each of us about Biden’s capability to lead our Nation. Kamala Harris is as culpable as Biden’s senior staff and family in this scheme to subvert democracy.’

‘Democrats have been complicit in the largest political cover-up in history.’

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These comments have, without providing evidence, accused Ms. Harris and other top Democrats of a cover-up to hide the state of Mr. Biden’s physical and mental fitness.

18 asked, ‘Where’s Biden?’ or implied that the president had gone missing.

‘Where is Joe Biden? Who is running the show?

‘Americans are asking: Where is Joe Biden?

‘For the third time today, I’m asking Joe Biden to provide the American people with proof of life.’

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Mr. Biden was self-isolating with Covid-19 at his family’s Delaware beach house when he made the announcement that he would step aside from the 2024 presidential race. These comments drew attention to his lack of recent public appearances, in some cases even calling for a demonstration that Mr. Biden was still alive. Mr. Biden returned to Washington Tuesday afternoon and is set to give a televised address this evening.

143 made other statements, mostly attacking Ms. Harris’s record.

‘ “Border Czar” Harris has NOT done her job to secure the border.’

‘Kamala Harris leads the Far Left Democrats’ pro-crime, anti-victim agenda.’

‘Cackling Kamala is widely considered less competent than dementia-impaired Joe Biden.’

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Dozens of Republican officials made more typically political statements, including criticizing Ms. Harris as a candidate. One common line of attack, positing that Ms. Harris failed as a “border czar,” is misleading. (Some Republican candidates have already begun to run ads like this one, drawing attention to some of the more liberal positions Ms. Harris has taken in the past, particularly during her failed 2020 presidential primary campaign.)

And 9 made positive or supportive comments about Mr. Biden’s decision.

‘Fran and I wish President Biden and the First Lady all the best as he serves out the remainder of his term and in the years ahead.’

‘I understand and respect President Biden’s decision not to seek reelection. While we have political differences, I appreciate his lifelong service to our nation, which he dearly loves.’

‘I respect President Biden’s decision to act in the best interest of the country by stepping aside in the 2024 presidential election.’

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A few Republican officials wrote kindly about their relationships with Mr. Biden or sent him well wishes.

In the table below, see which Republican elected officials made which types of statements, as of Tuesday night.

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