The Memo: Former Trump White House lawyer predicts crushing defeat at Supreme Court
A former attorney for the Trump White House predicts that the Supreme Court will rule unanimously against the 45th president on his claims to be immune from criminal prosecution.
Ty Cobb, who was special counsel to the White House as Trump sought to fend off the investigation headed by Robert Mueller, was speaking after an appeals court ruled against Trump on Tuesday.
“The immunity case should be a 9-0 case on the Supreme Court,” Cobb told this column. “It is very clear that the president doesn’t have immunity from criminal prosecution. You are weighing an argument that there is no precedent for, and is found nowhere in the Constitution.”
Cobb further contended that an emphatic throwing out of Trump’s claims “will be their decision, whether now or after he is convicted — if he is convicted.”
But, underlining the legal and political stakes, Cobb noted that if Trump were to win this year’s election before the legal process is exhausted, he would be likely to shut down any extant federal case against him.
Trump, for his part, is lambasting the appellate court’s judgment.
On Truth Social Tuesday, Trump complained that “without Presidential Immunity, the Presidency will lose its power and prestige, and under some Leaders, have no power at all. The Presidency will be consumed by the other Branches of Government.”
He also reposted a statement from a spokesperson, Steven Cheung, which pledged that Trump’s legal team would appeal the decision “to safeguard the Presidency and the Constitution.”
The context is the criminal case against Trump, spearheaded by special counsel Jack Smith, over efforts to overturn the 2020 election.
Smith alleges that Trump’s actions in the period after the election and encompassing the Capitol riot of Jan. 6, 2021, violated four criminal statutes. The charges include conspiracy to defraud the United States and conspiracy against rights, as well as two charges relating to obstruction of an official proceeding.
In response, Trump’s team has claimed that he should be immune from prosecution.
Their argument in that regard has three main planks: First, that Trump’s actions amount to “official acts” in his role as president and are therefore not prosecutable. Second, that any prosecution of Trump would excessively constrain future presidents and invite partisan prosecutions once they left office. And third, that a president cannot be convicted by the criminal courts if he or she has been acquitted by Congress in impeachment proceedings regarding the same conduct.
The appeals court panel, comprised of two judges nominated by President Biden and one by former President George H.W. Bush — gave little credence to those arguments.
“We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter,” the judges wrote. They concluded their 57-page ruling by asserting that Trump’s claim of immunity “is unsupported by precedent, history or the text and structure of the Constitution.”
The Supreme Court now faces a momentous moment.
Tuesday’s ruling basically challenges Trump to appeal to the high court swiftly, if he wants to keep the underlying case on ice.
The Trump team’s actions so far have clearly pointed to a desire to delay the four trials he faces for as long as possible — and, in particular, to extend the process past the date of the general election that they hope he wins.
The Supreme Court has a 6-3 conservative majority and includes three justices whom Trump himself nominated.
But many legal observers believe they are nevertheless unlikely to uphold Trump’s claims of immunity, given the apparent deficiencies in that argument exposed on Tuesday.
The high court could, however, take its time mulling the case or rule on very narrow grounds.
The justices also now find themselves in a double spotlight since on Thursday they are scheduled to hear oral arguments in another Trump-related case. The latter case concerns whether Trump is disqualified under the 14th Amendment, which bars those who “engaged in insurrection or rebellion” from holding office.
In the case regarding immunity, there would be “tremendous consequences” if the high court found in Trump’s favor, according to Todd Belt, the director of the political management program at the George Washington University’s Graduate School of Political Management.
Such a ruling, Belt said, would mean “the president can do whatever a president wants — virtually a monarchy.”
But from a political standpoint, Belt noted the degree to which GOP primary voters have rallied around Trump in the wake of his indictments.
Citing a survey at his own college, he also noted that there are significantly different views about each of the individual cases against Trump. A New York case that has its roots in payments to adult actress Stormy Daniels is broadly seen as far less serious, and more politically driven, than the federal case pertaining to Jan. 6 or the Georgia case about alleged election interference in that state.
It is, of course, also possible that Trump could be acquitted in any or all of the trials — an outcome that would almost certainly buoy his hopes of returning to the White House next January.
But a trial and conviction anywhere, even if it were still being appealed by Election Day, could have seismic consequences.
A Bloomberg/Morning Consult poll released last week found that 53 percent of registered voters across seven key states would be unwilling to vote for Trump if he were convicted.
For the moment, Trump critics put their hopes in the Supreme Court on the immunity question.
Asking the high court to provide such broad immunity would be akin to “exempting him from having to breathe air,” said Rick Tyler, a GOP strategist and Trump critic.
“He is a citizen of the United States. He was a citizen of the United States before he was president and while he was president, and he is still a citizen after he was president. He is subject to the same laws as everybody else.”
The Memo is a reported column by Niall Stanage.