Braden Boucek, vice president of Litigation for Southeastern Legal Foundation, explained the different avenues New York Judge Juan Merchan can pursue on Tuesday when he decides whether President-elect Donald Trump’s criminal conviction in the Stormy Daniels hush money case should be overturned in light of the U.S. Supreme Court’s recent ruling on presidential immunity.
In July, the Supreme Court ruled 6-3 in Trump v. United States that Trump is immune from federal prosecution for official acts he took while in office.
The nation’s highest court also ruled that there is no immunity for unofficial acts.
On Tuesday, Merchan will decide whether or not Trump’s hush money case should be dismissed in light of the Supreme Court’s ruling on presidential immunity.
Noting how Merchan’s decision is “anyone’s guess,” Boucek explained that the judge must first determine if acts alleged in Trump’s hush money case constitute official acts.
“What the judge has to determine is whether or not the acts alleged in the New York fraud case constitute official acts,” Boucek said on Monday’s edition of The Michael Patrick Leahy Show.
“On the face of it, they don’t appear to be official acts because they deal with him paying off Stormy Daniels; however, the prosecution couldn’t resist the urge to get in as much stuff as they could that was negative towards the former president and as a result, it led in a bunch of evidence that does appear to include things he did during his time as president or when he was running for president. That’s given the defense team room to argue that the evidence is irrevocably tainted and therefore does implicate official acts,” Boucek added.
Boucek said Merchan could make three different decisions on Tuesday: finding that Trump is immune and tossing out the case, finding that Trump is immune and ordering the trial to resume, or simply “rejecting” the immunity claim.
If Merchan does not dismiss the case, Boucek said Trump’s legal team can appeal the decision to the Supreme Court.
“One of the things that makes an immunity claim distinct from other claims is that it’s appealable all the way up. So even if he does anything other than dismiss all the charges, Trump’s lawyers will have the ability to appeal that to the New York State system and then ask the American Supreme Court to take a look at the case as well. So it’s hardly going to be the last word,” Boucek said.
If he does not dismiss the case against Trump, Merchan must also decide whether to proceed with sentencing the president-elect on November 26, the scheduled date.
Boucek stressed there is still a possibility that Merchan will sentence Trump to prison on November 26.
“We would certainly be in uncharted waters if he orders the incoming United States president to prison. Of course, he could do something even more bizarre, like order him to prison and then say he can’t report until his term is done, which would be a strange thing to do. But as I said, we are certainly sailing in uncharted waters. We are off the map here,” Boucek explained.
Boucek said he believes the Department of Justice and Trump’s team would immediately argue that sending the incoming president to prison would “interfere” with his official duties.
“The Department of Justice and President Trump would surely argue that this interferes with its official duties. There’s no way that a president can operate as the head of the United States if he’s in Rikers Island but you’d hope that they would see the sense in that but again, this is not necessarily the sort of thing we’re seeing common sense on display,” Boucek said.
If Trump is sentenced to prison on November 26, Boucek said the only way the president-elect could immediately file for an emergency release is by applying for immediate appellate relief.
“I would hope that President Trump would apply for immediate appellate relief. He could try to get it back in front of federal court under habeas corpus proceedings. He did that once before and it was unsuccessful, but I would hope he would have more success advancing that claim this time,” Boucek said.
Watch the full interview:
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Kaitlin Housler is a reporter at The Tennessee Star and The Star News Network. Follow Kaitlin on X / Twitter.
