Trump is very proud of the judges that he’s put on the bench, particularly his U.S. Supreme Court justices. He believes “his judges” will protect him. Regrettably, it appears he’s correct.
Based on questions from conservative Supreme Court justices during oral arguments April 25, it looks like they may rule Trump has immunity for actions he took in his “official capacity” as president. Defining “official capacity” is the dilemma.
One hypothetical scenario presented by a justice questioned whether a U.S. president has immunity if he orders the assassination of a political opponent. Trumps lawyers argued “yes.” This “yes” was supported by at least four justices.
Most legal scholars would say that based on our history – revolting from an all-powerful English king – that our legal system is based on no one being above the law. However, our Supreme Court seems inclined to place Trump and future presidents above the law.
Conservative justices normally claim they stick to the strict letter of the U.S. Constitution, and this was the reason they provided for shooting down laws permitting abortion. Now, they are reversing themselves and potentially considering adding language to the Constitution that currently does not exist.
The U.S. Constitution does not state that a president has absolute immunity. In fact, President Richard Nixon resigned and was pardoned by President Gerald Ford so that he would not be subjected to criminal prosecution. In the Nixon era, it was clear that presidents did not have “absolute immunity.”
Manhattan District Attorney Alvin Bragg’s case, once thought to be the weak link among all the criminal cases against Trump, has suddenly risen in prominence. Trump’s bribes to two women to prevent them from disclosing the truth – that he had sexual relationships with them while married to Melania Trump – are now critical. Trump’s “hush money” scheme in violation of election law occurred before he was president, so any presidential immunity would not apply. It is also a state case and therefore should not be subject to a potential U.S. Supreme Court appeal. If convicted, Trump would have to appeal to New York appellate courts.
New York State judges aren’t afraid of Trump, and he’s already lost two cases there. Then on Tuesday, Judge Juan M. Merchan held Trump in contempt of court for repeatedly violating a gag order that barred him from making public statements about witnesses, jurors and others connected to his New York hush money case. The judge fined the former president $9,000 and threatened to send him to jail if he violates the gag order again.
Notwithstanding this latest drama, based on the evidence to date in this case, it may very well be that Trump is finally heading toward a criminal conviction.
Reginald J. Clyne is a Miami trial lawyer who has worked in some of the largest law firms in the United States and been in practice since 1987, trying cases in both state and federal courts. He has lived in Africa, Brazil, Honduras and Nicaragua.
Reginald J. Clyne, Esq.