A former Trump White House lawyer predicts that the Supreme Court will unanimously rule against the 45th president based on his claims to immunity from criminal prosecution.
Ty Cobb, who was a White House special counsel when Trump sought to fend off the investigation led by Robert Mueller, was speaking after an appeals court ruled against Trump on Tuesday.
“The immunity case should be a 9-0 case before the Supreme Court,” Cobb said in this column. “It is very clear that the president does not have immunity from criminal prosecution. You are evaluating an argument that is unprecedented and found nowhere in the Constitution.
Cobb further argued that categorically rejecting Trump’s claims “will be their decision, whether now or after his conviction – if he is found guilty.”
But, highlighting the legal and political issues, Cobb noted that if Trump wins this year’s election before the legal process is exhausted, he would likely end any pending federal proceedings against him.
Trump, for his part, castigates the appeals court’s judgment.
On Truth Social on Tuesday, Trump complained that “without presidential immunity, the presidency will lose its power and prestige, and under some leaders, it will have no power at all.” The presidency will be occupied by the other branches of government.
It also reposted a statement from a spokesperson, Steven Cheung, who promised that Trump’s legal team would appeal the decision “to safeguard the presidency and the Constitution.”
The context is the criminal case against Trump, led by special counsel Jack Smith, for his efforts to overturn the 2020 election.
Smith alleges that Trump’s actions during the post-election period, encompassing the Capitol riot on January 6, 2021, violated four criminal statutes. The charges include conspiracy to defraud the United States and rights conspiracy, as well as two charges related to obstruction of an official proceeding.
In response, Trump’s lawyers argued that he should be immune from prosecution.
Their argument for this rests on three main points: First, Trump’s actions constitute “official acts” in his role as president and therefore cannot be prosecuted. Second, any prosecution of Trump would excessively constrain future presidents and invite partisan prosecutions once they leave office. And third, a president cannot be convicted in criminal courts if he was acquitted by Congress in impeachment proceedings for the same conduct.
The appeals court panel, made up of two judges appointed by President Biden and one judge by former President George HW Bush, gave little credence to these arguments.
“We cannot accept that the office of the presidency places its former occupants above the law forever,” the judges wrote. They concluded their 57-page decision by asserting that Trump’s claim of immunity “is not supported by any precedent, nor by history, nor by the text and structure of the Constitution.”
The Supreme Court now faces a momentous moment.
Tuesday’s ruling essentially challenges Trump to quickly appeal to the high court, if he wants to keep the underlying case on ice.
The Trump team’s actions so far have clearly demonstrated a desire to delay the four trials he faces for as long as possible – and, in particular, to prolong the process beyond the date of the general election that they hope he wins.
The Supreme Court has a 6-3 conservative majority and includes three justices appointed by Trump himself.
But many legal observers nonetheless say they are unlikely to support Trump’s immunity claims, given the apparent flaws in that argument exposed Tuesday.
The High Court could, however, take its time to consider the matter or rule on very limited grounds.
More from The Hill
The justices also now find themselves in a double spotlight, as they are scheduled to hear oral arguments in another Trump-related case on Thursday. This latest case concerns whether Trump is disqualified under the 14th Amendment, which prohibits those who “engaged in insurrection or rebellion” from holding office.
In the case of immunity, there would be “tremendous consequences” if the high court ruled in favor of Trump, according to Todd Belt, director of the political management program at the Graduate School of Political Management at George Washington University .
Such a move, Belt said, would mean “the president can do whatever he wants – practically a monarchy.”
But from a political perspective, Belt noted how Republican primary voters rallied behind Trump in the wake of his indictments.
Citing an investigation by his own college, he also noted that there are very different views on each of the individual cases against Trump. A New York case that originated in payments to adult actress Stormy Daniels is widely considered far less serious and more politically motivated than the federal case over January 6 or the Georgia case over alleged interference election in this state.
It is of course also possible that Trump will be acquitted in one or all of the trials – an outcome that would almost certainly boost his hopes of returning to the White House next January.
But a trial and conviction anywhere, even if still under appeal on Election Day, could have seismic consequences.
A Bloomberg/Morning Consult survey released last week, found that 53% of registered voters in seven key states would not be willing to vote for Trump if he were convicted.
For now, Trump’s critics are pinning their hopes on the Supreme Court on the immunity issue.
Asking the high court to grant such broad immunity would be “absolving him of having to breathe air,” said Rick Tyler, a Republican Party strategist and Trump critic.
“He is an American citizen. He was a citizen of the United States before and while he was president, and he is still a citizen after serving as president. He is subject to the same laws as everyone else.
The Memo is a column reported by Niall Stanage.
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