Legal Analyst Skeptical of Supreme Court's Clarity on Trump's Immunity

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00:00an office. The judge in Donald Trump's New York hush money trial delayed the sentencing until

00:05September, and the former president is now fighting to get the entire case thrown out

00:09as a result of the high court's ruling. Joining us now, Glenn Kirshner, former federal prosecutor

00:15and an MSNBC legal analyst, and Dahlia Lithwick, senior editor for Slate, host of the Amicus

00:22podcast, and an MSNBC law and politics analyst. Glenn, let's start with exactly what we were

00:29just introducing, that idea of what will happen to the New York case based on the

00:34Supreme Court decision. What's your perspective? So, Richard, as you mentioned, Judge Mershon

00:40has already pushed off the sentencing date to September so they can have some post-verdict

00:45litigation. Donald Trump's lawyers are trying to vacate his conviction, arguing that, well,

00:50in hindsight, even though these new rules of evidence, in essence, that the Supreme Court

00:56just conjured up out of thin air and will be applying retroactively to earlier cases,

01:04the question for Judge Mershon will become, did the evidence that was introduced against

01:08Donald Trump in the New York trial somehow violate the new rules that have been handed down

01:15by the Supreme Court? Now, in a rational world, when we're not living in the legal upside down,

01:20it would seem that everything Donald Trump did and all of the evidence that was introduced

01:25against him involved non-official acts. Much of it, he wasn't even president, so, of course,

01:31he can't claim presidential immunity before he was sworn in. And even though there was some

01:36evidence that was introduced against him after he was sworn in, for example, writing reimbursement

01:41checks to Michael Cohen, who actually paid out-of-pocket the hush money payment for the

01:46benefit of Donald Trump, those are very unlikely to be deemed official presidential acts. It's

01:53more of his personal criminal scheme with his co-conspirator Michael Cohen. So I do think at

01:58the end of the day, when the dust settles and this issue is litigated, this is unlikely to upset the

02:04New York conviction, and then the case should move to the sentencing phase come September.

02:11Dahlia, when you look through the statements that came from the decision of the Supreme Court,

02:17what parts are good for the prosecution? What parts are good for Donald Trump's defense?

02:24I mean, I think that Glenn has perfectly articulated the problem, which is that the

02:30court created from almost whole cloth a sort of jello standard of we're going to now differentiate

02:37between official acts, between private acts. We've got an inner perimeter, core functions,

02:42outer perimeter. They conflated tests from a whole bunch of different cases,

02:48and then have the audacity to sort of kick it back to the lower courts to figure it out.

02:52So the answer is we don't know. What we can do and what Glenn and I and all of our lawyer friends

02:58are trying to do is speculate what falls into private conduct, what falls into official conduct,

03:05what kinds of conduct, evidence of official conduct still can't be used to make claims

03:13about private conduct. But it's really not a clear test. It's an incredibly murky test,

03:18and the court wants it to get worked out in the appellate process. So the short answer is I think

03:25we can do a ton of lawyering around this. And clearly that's what Bragg's team is going to

03:29try to do is lawyer this. And I think Glenn's right. An awful lot of this conduct by any

03:34construction of what is private, unofficial acts still seems to survive. But I want to be really

03:41clear. I don't know that John Roberts knows what the test is that he set forth in his opinion on

03:46Monday. Glenn, so we have federal cases related to Donald Trump. We have our state cases. Does

03:53this decision equally affect both sets? This decision is like a polluted river that runs

04:00through it. It will run through all of Donald Trump's criminal cases. And I love Dahlia's

04:05characterization of the standard that Chief Justice Roberts put in his opinion. It is like a jello

04:11standard, and the jello hasn't even set. That's what we're dealing with here. So it will absolutely

04:17impact his other cases. For example, in Georgia, Donald Trump's RICO prosecution down there,

04:23they will similarly litigate whether what he did, you know, was a core constitutional power or was

04:30it an official or an unofficial act. The only upside there, Richard, is that all of this is in

04:35pre-trial litigation. So they can sort of clear the evidentiary landscape and then move into the

04:41trial proper, hopefully someday. I think I have greater concern for how it impacts the Florida

04:48federal prosecution of Donald Trump, being presided over by Donald Trump's favorite judge,

04:52one he appointed, Judge Aileen Cannon. The problem is we can almost hear Donald Trump's lawyers

04:57already arguing that the fact that as president, he made the decision to take classified documents

05:03and national defense information with him when he left the White House. What will they be calling

05:07that? Well, at a minimum, they'll call it an official act, if not a core constitutional

05:13power for which he has absolute immunity. Now, I don't think that dog will hunt. But with, you know,

05:20Aileen Cannon presiding over this case, you have to wonder whether she will latch on to a frivolous

05:26legal argument like that and find reason to to grant some relief to Donald Trump.

05:31Dolly, in your reporting and review of the decision, how did partisanship in the Supreme

05:37Court pass out? How did that come to be, whether it's there or not? What was your assessment?

05:43I mean, this was a 6-3 supermajority conservative ruling. I don't think there's anything but

05:50partisanship. And I would also note, historically, the Supreme Court tries really hard in big, big

05:57blockbuster cases like Brown v. Board to be unanimous or close to unanimous. They make

06:02whatever compromises they need to make internally in order to show the world that this is not

06:08politics. This is not ideology. This is the Supreme Court only passing on questions of law.

06:14The fact that that broke down so completely and that this was, I mean, the presidents who

06:20appointed these judges, that is determinative of their votes in this case. Amy Coney Barrett

06:26peeled off for a tiny piece of this on an evidentiary question. But this was a 6-3

06:32conservative liberal vote. The court didn't try to hide that. And I would go so far as to say,

06:38when I read the majority opinion, what I read is the chief justice almost completely dismissing

06:45the real world concerns in the dissents. So we have Sonia Sotomayor saying essentially,

06:50answer the question, can the president order SEAL Team 6 to assassinate a political rival?

06:56He doesn't even bother to answer that. He instead accuses the dissenters of fear-mongering. So it's

07:02not just a partisan opinion. It's almost a split-screen opinion in which the majority lives

07:08in one world, where this is an abstract case about separation of powers and executive power.

07:13And the dissent lives in the world that had across the street January 6th play out.

07:19Just the number of opinions and statements made by the different justices is an indication of

07:24they were not definitely together on this. Dahlia Lithwick, Glenn Kirshner, thank you so much.

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