Will the Supreme Court Affect the Debate?

The Supreme Court announced that it was adding another opinion day to its schedule — Wednesday, June 26th. Among the pending cases is United States v. Trump, in which the court must decide to what extent presidential immunity shields the president from criminal prosecution for actions taken while in office.

While the content of the discussions during oral arguments are not a perfect indicator of how the court will rule, Scotus blog sat through oral argument and concluded the court is likely to side with Donald Trump to some degree: Grow or Die: The Good ... The Good, David Best Price: $9.68 Buy New $13.99 (as of 02:37 UTC - Details)

With four of the court’s conservative justices — Thomas, Alito, Gorsuch, and Kavanaugh — appearing to lean toward some form of immunity for Trump, the ruling may hinge on Roberts, who although relatively quiet seemed dubious about the reasoning of the D.C. Circuit’s opinion, which he summarized as saying that “a former president can be prosecuted because he is being prosecuted.” And although Dreeben stressed the “layers of protection” available to shield a former president from unwarranted prosecutions, such as the assumption that prosecutors will act in good faith and the need for a grand jury to return an indictment, Roberts asked Dreeben why the court shouldn’t send the case “back or issue an opinion saying that’s not the law?”

The timing of the release of the opinion — should it occur on Wednesday — is particularly significant because the following day is set for the debate between President Biden and Donald Trump, and there’s every indication that Biden’s strategy is to hammer on the criminal cases (and singular criminal conviction in New York) against his opponent.

But all those cases have substantial infirmities as well and Trump can certainly argue that those cases are not evidence of wrongdoing by him, but rather evince the Democrats’ use of lawfare to punish him and remove him from the election contest. (All these cases arise from the deep blue cities of New York and Washington, D.C. which, at least when it comes to Trump, seem to be using a Soviet legal handbook.)

This week, the Supreme Court issued two opinions that do not bode well for the outcome of the NY case brought by Bragg, which is the single conviction.

In Gonzalez v. Trevinothe court held in favor of Sylvia Gonzalez, who had been arrested in Castle Hills, Texas in 2019 on a trumped-up charge of tampering with government records. She had briefly misplaced a petition on a table at a public meeting.

This was a blatant case of selective prosecution by officials whom Gonzalez had criticized.  She was the only person charged in the last 10 years under the state’s records laws for temporarily misplacing a document. She argued that virtually every one of the prior 215 felony indictments involved the use or creation of fake government IDs.

Although the charges were later dropped, the case reeked of political retaliation and selective prosecution. …when she sued, the appellate court threw her case out, requiring Gonzales to shoulder an overwhelming burden of proof to establish selective prosecution for her political speech. The justices, on the other hand, reduced that burden…

Unlike the Trump case, the criminal charges against Gonzales were thrown out before trial. For Trump, selective prosecution claims were summarily dismissed, even though no case like Bragg’s appears to have ever been brought before.

The Bragg case is raw political prosecution. No one seriously argues that Bragg would have brought this case against anyone other than Trump. Indeed, his predecessor rejected the case.[snip] Another case decided this week was Erlinger v. United States. The justices ruled 6-3 (and not along the standard ideological lines) to send back a case in which Paul Erlinger had been convicted of unlawful possession of a firearm as a felon. [snip]

The court ruled that a jury had to decide this issue unanimously under a standard of beyond reasonable doubt. This is in contrast to how the Trump case was handled, in which jurors could disagree on key aspects of the crime yet still convict the defendant.

In Trump’s trial, Judge Juan Merchan effectively guaranteed a conviction by telling jurors that they did not have to agree with specificity on what had occurred in the case to convict Trump. The only way to get beyond the passage of the statute of limitations on the dead misdemeanor for falsifying business records had been to allege that the bookkeeping violation in question occurred to conceal another crime. Bragg did not bother to state clearly what that crime was, originally alluding to four different crimes. How Not to Die: Discov... Stone, Gene Best Price: $8.10 Buy New $14.52 (as of 05:53 UTC - Details)

It was not until the end of the case that Merchan would lay out three possible crimes for the jury. All the way up to the final instructions in the case, legal analysts on CNN and other outlets expressed doubt about what the actual theory of the criminal conduct was in the case. [snip]

…Merchan told the jurors that they did not have to agree on which fact-pattern or conspiracy had occurred. They could split 4-4-4 on the secondary crime motivating the misdemeanors and just declare that some secondary crime was involved.

That was all that is required in New York when in pursuit of Trump. [snip]

But Gonzales and Erlinger demonstrate the high level of protections that we normally afford criminal defendants. A court with a 6-3 conservative majority just ruled for the rights of all defendants in defense of the rule of law.

That is not how the law is seen from 9th Avenue.

It all comes down to the legal map. As even CNN senior legal analyst Elie Honig observed, this case of contorting the law for a selective prosecution would not have succeeded outside of an anti-Trump district.

As for the pending case in Florida respecting a claim of mishandling classified documents, Judge Cannon has been wading through numerous pretrial discovery matters and motions.

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