Not The Victory Trump Is Looking For

Initial headlines missed it. But corrupt Court also changed constittuion to allow Trump to undo his pre-presidency NY state felonies https://t.co/MNJjtFVAkH via @TPM

— Josh Marshall (@joshtpm) July 2, 2024

The majority’s decision, and Barrett’s concurrence, reads like a transcript of evidentiary hearings that happened throughout Trump’s New York trial. And, in short, the trial court adopted Barrett’s approach to considering evidence from Trump’s time in office—an approach which, as of yesterday, is unconstitutional (agains, see p. 31 of the majority’s opinion). Did any of that evidence actually matter to the outcome in New York? Who knows… and that’s the point. The trial court is going to be hard-pressed to say that any possible error here was harmless; SCOTUS went out of its way to say that admitting basically any such evidence is prejudicial. 

Bottom line: Roberts has a knack for writing opinions that are bad on their face, and worse below the surface. Add Trump v. United states to the list of “worse than it looks.”

There is further analysis of the decision, with important quotes from it, but I’ll cut to the chase:

There’s no way that the NY trial court correctly analyzed evidence drawn from Trump’s time in office—how could it, when the rule didn’t exist then? But still, it seems impossible to say ex ante that all of the evidence let in was merely private. And, if anything let in was plausibly a public act, then SCOTUS’s opinion seems to say that a mistrial would be required.

I know Trump is aiming for outright dismissal of the charges (never gonna happen; paying off a porn star to keep her from going to the media, and hiding the payments in false business records, is not remotely “official duties”. And talking to employees of the President’s business while in office can’t remotely be considered “official,” either. In fact, my guess is this goes up in appeal on the same grounds the case went back to D.C.: because the Court didn’t really settle that issue.).  If Merchan (unlikely) declares a mistrial based on Trump v U.S., at worst the case goes back to the trial court for a new trial (no error by the prosecution, who followed the law at the time of trial). So Trump pays for a second trial, which could come…? Well, depends on the Manhattan docket.

If that doesn’t happen, the likelier course is the appeals courts (which can’t be in love with this ruling), follow the letter of it and decide for themselves how much, or little, the case is affected by this case which tells the lower courts to set standards. And it sets those standards based on the facts of this case. Which may eventually make its way back to the Supremes; but not for a while. And even if it does get reversed in the state courts, it will just go back for a new trial. After all, it’s a fairly easy matter to cure, since all that needs to come out, if anything, is likely some evidence from White House employees.

I still think the vast majority of the indictment in DC and Georgia stand after yesterday as unofficial acts or non-core official acts though there will be tricky issues related to J6 itself. It's a terrible decision that poses serious dangers if the wrong person is president.

— Anthony Michael Kreis (@AnthonyMKreis) July 2, 2024

I drop that in to underline that the issue are complex, and there’s going to be a lot of arguments about “official” and “non-core official” and “unofficial” acts, arguments the Roberts decision specifically punted to the lower courts. That’s going to include state courts. Merchan may decide on n a new trial. Merchan may let the Appellate Division wrestle with it. But it’s not an issue that’s going to be settled soon.

And Trump gets to pay for that all over again, having paid for all those appeals.

I’m still seeing prison and/or the poorhouse in Trump’s future.