Bragg’s Conviction Against Trump Could Backfire At SCOTUS, Impact Jack Smith’s Case


OPINION: This article may contain commentary which reflects the author’s opinion.

District Attorney Alvin Bragg’s victory in prosecuting former President Donald Trump on all 34 counts in his hush-money case could potentially backfire on Special Counsel Jack Smith’s attempts to find the 45th president guilty of 44 more charges that were presented in federal courts in the districts of Florida and Washington, D.C.

After a season of legal stalemate, the first guilty decision against an American president may boost Mr. Smith’s confidence, but there are also some possible risks for the prosecutor. The conviction may cause judges and justices to consider the precedent set by presidential prosecution.

The New York County ruling coincides with the US Supreme Court deliberating Trump’s argument that presidents should have perpetual “absolute” immunity for their actions in their official capacities. According to the special counsel, no such protection or illegal activity, such as plotting to rig the election, is always criminally prosecutable.

The immunity question does not immediately affect the hush money verdict at this time. It seems that Trump has acknowledged the private nature of the conduct in question. According to Judge Juan Merchan, many of the case’s circumstances involved running for office rather than holding it, and his attorneys failed to bring up the issue promptly.

A federal judge, Alvin Hellerstein, has ruled that, in respect of the payments to an adult film star, Stormy Daniels, the “evidence overwhelmingly suggests that the matter was a purely personal item of the President — a cover-up of an embarrassing event. Hush money paid to an adult film star is not related to a president’s official acts.”


The justices may find that Trump’s argument for immunity gains strength in light of his conviction. In his brief to the high court, the 45th president warned that subjecting a president to prosecution could result in “years of post-office trauma at the hands of political opponents.” He argued that the threat of future prosecution and imprisonment could be used as a political weapon.

“Mr. Smith would respond that the threat of criminal prosecution for official acts is not a credible threat to what Justice Antonin Scalia called the ‘boldness of the president,’ because it will happen only rarely. At oral arguments before the Supreme Court, though, one of the liberal lions, Justice Ketanji Brown Jackson, acknowledged a ‘very legitimate concern about prosecutorial abuse.’ Will Bragg’s boast diminish or deepen that concern?” the New York Sun reported.

Trump’s lawyer at the oral arguments, John Sauer, warned the court that if Smith’s argument prevails, “every current president will face potential blackmail and extortion by their political opponents.” A state conviction by an elected prosecutor could make this prediction more credible to the justices, who will decide how much protection the president should have.

However, there are limits to what the justices could do for Trump. Justice Neil Gorsuch’s point that a narrow view of immunity could lead to presidents trying to pardon themselves only applies to federal crimes, not state ones.

“The case would have to make its way through New York’s appellate system — the tenets of federalism mandate that, in all but the rarest of circumstances, federal courts will only intervene in state prosecutions as a last result. Trump would also have to argue that there is a federal issue at stake that warrants federal judicial consideration,” the outlet reported.

“Trump, though, could be helped by the unusual — almost unprecedented — nature of Mr. Bragg’s case, in two ways. First, the district attorney’s use of federal election law — violations of the Federal Election Campaign Act — as a possible predicate for securing a state crime conviction. While the jury was not required to find Trump guilty on that head, it could emerge as a hook on which to hang an appeal,” the outlet added.

Trump may even claim that his federal rights were infringed upon by the prosecution as a whole.

For example, the jury instructions’ broad tolerance for conviction could be used to support a claim that the jury’s impartiality and due process were violated by the Constitution.

The 45th president may also argue that the way the allegations have been constructed against him is so unique and customized that it amounts to selective prosecution, in the same way, that Lavrentiy Beria used to argue, “Show me the man, and I’ll show you the crime.”

This comes as House Judiciary Committee Chairman Jim Jordan has requested Manhattan District Attorney Alvin Bragg and another top state prosecutor to testify regarding Trump’s prosecution.

In letters sent to Bragg and Matthew Colangelo, senior counsel to the DA’s office, Jordan called on the prosecutors to testify before the Select Subcommittee on the Weaponization of the Federal Government on June 13.

Colangelo was a high-ranking official at President Joe Biden’s Justice Department before leaving to help Bragg prosecute Trump.

“This hearing will examine actions by state and local prosecutors to engage politically motivated prosecutions of federal officials, in particular the recent political prosecution of President Donald Trump by the Manhattan District Attorney’s Office,” Jordan wrote, as reported by NBC News.


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