This Week In Lawfare Land: SCOTUS Sends Prosecutions Into Tailspin

On Monday, the Supreme Court issued a major decision in Trump v. United States that sent shockwaves throughout the political and legal world. The Supreme Court’s decision held that a president is entitled “to absolute immunity from criminal prosecution” for “actions within his conclusive and preclusive constitutional authority” and “at least presumptive immunity” for “official acts.” This holding could entitle President Trump to immunity from criminal prosecution and upend the lawfare crusade against President Trump in New York, Georgia, Florida, and Washington D.C.

The Supreme Court’s decision has already prompted Judge Merchan to delay President Trump’s sentencing hearing to Sept. 18 in Manhattan, meaning Trump will no longer be forced to deal with the absurd timeline of a sentencing just days prior to the Republican National Convention. President Trump’s legal team is now seeking to vacate the conviction based on presidential immunity.

Here’s the latest information you need to know about each case.

Read our previous installments here.

Manhattan, New York: Prosecution by DA Alvin Bragg for NDA Payment

How we got here: Manhattan District Attorney Alvin Bragg — who “campaigned as the best candidate to go after the former president” — charged former President Donald Trump with 34 felony charges for alleged falsification of business records relating to a nondisclosure agreement paid by Trump’s former attorney Michael Cohen to pornographic film actress Stormy Daniels.

This criminal trial concluded on May 30, with the jury returning a guilty verdict that Trump is expected to appeal. The conviction does not affect President Trump’s ability to run for president, though it may present complications with his ability to run a modern presidential campaign.

Latest developments: Following the Supreme Court’s decision in Trump v. United States on Monday, Judge Merchan postponed President Trump’s sentencing hearing to Sept. 18 “if such is still necessary.” In Trump v. United States, the Supreme Court determined that a president is entitled to “at least presumptive immunity” for “official acts.” Following the Supreme Court’s ruling, President Trump’s legal team filed a motion seeking to overturn the Manhattan conviction based on presidential immunity, arguing that the jury saw evidence that was otherwise protected by at least the presumption of presidential immunity.

Fulton County, Georgia: Prosecution by DA Fani Willis for Questioning Election Results

How we got here: The Georgia state criminal case is helmed by District Attorney Fani Willis, who charged Trump with 13 felony counts, including racketeering charges, related to his alleged attempt to challenge the 2020 election results in Georgia. This case is currently stalled while the Georgia Court of Appeals hears an appeal on whether Willis should be disqualified from the case. The hearing is scheduled for Oct. 5, 2024.

Latest developments: This case remains largely on hold, although the recent Supreme Court decision in Trump v. United States may have implications for these criminal proceedings. Specifically, if President Trump’s actions in Georgia constituted “official acts,” or even the “outer perimeter” of official acts, then the Georgia courts could find President Trump is entitled to immunity from criminal prosecution in this case.

Southern District of Florida: Prosecution by Biden DOJ for Handling of Classified Documents

How we got here: In this federal criminal case, special counsel Jack Smith and federal prosecutors with Biden’s Justice Department charged former President Trump in June 2023 with 40 federal charges related to his alleged mishandling of classified documents at his Mar-a-Lago residence. In early May, Judge Aileen Cannon postponed this trial indefinitely.

Latest developments: There have not been any major developments, but the recent Supreme Court decision in Trump v. United States may affect this criminal proceeding as well. In a concurring opinion, Justice Thomas openly questioned the constitutionality of the existence of an Office of the Special Counsel, opening a lane for the position held by Special Counsel Jack Smith to be challenged in a lower court. Earlier this month, Trump’s attorneys argued before Cannon in a hearing that Smith’s appointment was unlawful. Presumably, were that office to be eliminated, his actions — charging a former president — would be mooted.

Washington, D.C.:  Prosecution by Biden DOJ for Jan. 6 Speech

How we got here: In this federal criminal case, Special Counsel Jack Smith charged former President Trump with four counts of conspiracy and obstruction related to his actions on Jan. 6, 2021. President Trump’s lawyers have argued that immunity extends to actions taken by a president while acting in his official capacity and that, in any event, the First Amendment protects his right to raise legitimate questions about a questionable election process.

Latest developments: On Monday, the Supreme Court issued a major decision in Trump v. United States, which significantly affects Special Counsel Jack Smith’s prosecution of President Trump for his actions on Jan. 6, 2021.

In Trump v. United States, the Supreme Court determined that a former president is entitled “to absolute immunity from criminal prosecution” for “actions within [the President’s] conclusive and preclusive constitutional authority.” These would be actions such as presidential pardons, vetos of legislation, naming and managing agency officials, and recognizing foreign governments. Further, for anything else a president does that is within the “outer perimeter of the president’s official responsibilities,” there is still a presumption of immunity from criminal prosecution. The scope of what falls within this “outer perimeter” will be determined by a lower court, but presumptively anything done by a president when acting in that capacity, rather than
a strictly campaign capacity, could well carry with it immunity.

The Supreme Court ultimately remanded the case to the District Court to now determine factually whether President Trump’s Jan. 6 conduct qualifies as official or unofficial.

This comes on the heels of the Supreme Court’s decision in Fischer v. United States which may result in at least two of the four counts against President Trump being dropped due to the Justice Department’s overreach on application of an obstruction statute.

The Supreme Court’s ruling will also affect the other pending legal cases against President Trump in New York, Georgia, and Florida.

New York: Lawsuit by A.G. Letitia James for Inflating Net Worth

How we got here: Democrat Attorney General Letitia James — who campaigned on going after Trump — sued former President Trump alleging that he misled banks, insurers, and others about his net worth to obtain loans, although none of the parties involved claimed to have been injured. Following a no-jury trial, Judge Arthur Engoron issued a decision in February ordering Trump to pay a $454 million penalty. Trump has appealed this decision and posted a required $175 million appeal bond.

Latest developments: This case remains mostly on hold.

Steve Roberts is a partner and Oliver Roberts is an associate with Holtzman Vogel Baran Torchinksy & Josefiak PLLC. They can be reached at [email protected] and [email protected].