Immunity Question Is One of Many Issues Judge Needs to Rule on in Trump Case: Legal ExpertSteve Lanc

Judge Juan Marchand is delaying the sentencing in former President Trump's New York case until after the election. How might this impact his candidacy? We're happy to have Zach Smith, Senior Legal Fellow and Program Manager at the Heritage Foundation's Center for Legal and Judicial Studies. Zach, thank you so much for joining us. Of course. Thank you for having me on the show this evening. Absolutely, Zach. Let's start with the case in which Trump has been convicted of falsifying business records related to payments to adult film actress Stormy Daniels. His sentencing is now delayed until November 26th after the presidential election. Is this a reasonable move and an expected move from a legal perspective? Well, I think it certainly shows that Judge Juan Marchand understands the seriousness of the case, the unprecedented nature of this case. Never before have we had a former president and a leading presidential candidate who's been convicted of a crime and facing possible imprisonment. Now, ordinarily, someone convicted of the charges of which Donald Trump has been convicted there in Manhattan would likely not be facing a period of incarceration. But nothing about this case to date has really followed standard practice and procedure. And so certainly under the relevant statutes, he's eligible for a sentence of incarceration. And given the unprecedented nature of this case and how things have unfolded so far, that sentence certainly is not off the table. But keep in mind, not only does Judge Juan Marchand still have to impose a sentence on Donald Trump, he still has to rule on the immunity question that Donald Trump's lawyers have raised in this case. When the U.S. Supreme Court decided the immunity decision last term, they said not only could a president or former president be prosecuted for official actions, but those official actions couldn't even be used as evidence against that president in any other civil or criminal proceeding. And so that is an issue that Judge Marchand will also have to resolve. And it looks like he is also going to rule on that issue in November after the election has taken place. And to that point, how do you see this immunity ruling being applied to this case? How may it be applied? And how do you see the sentencing play out? Could it look different if Trump wins the election? Well, certainly the political aspect of this shouldn't play into the calculus at all. Everyone is supposed to be treated equally under the law, regardless of who they are, whether they're running for office or any of those other types of considerations. Now, the immunity question will be just one of many potential appellate issues, depending on how Judge Marchand rules, that a New York appellate court will have to address. I've talked before at length about the many issues that arose during this trial that likely were reversible error when an appellate court reviews this case. But we'll have to wait and see how it plays out. But certainly the argument that Donald Trump and his lawyers are going to make to Judge Marchand is that some of the testimony that he allowed the jury to hear was improper because he likely should have been immune from use under the U.S. Supreme Court's decision. Now, this morning, Trump was in one of the New York courtrooms to appeal that verdict in the E. Jean Carroll case. Reminder for our viewers, E. Jean Carroll won, I believe it was five million dollars in damages following a trial last year. Trump's legal team argues that testimony from two other female accusers was improperly admitted at the trial. How strong is this argument? Well, we'll have to wait and see what the appellate court does in this case. John Sauer, who's a former Missouri solicitor general, who also argued one of Trump's cases at the Supreme Court last term, presented arguments in this case as well. But look, I think there are certainly troubling aspects about this case as well, regardless of what the court decides. There was evidence that the court did not allow the jury to consider, including certain interviews that Ms. Carroll gave after this incident took place and immediately around the time of the trial as well. And so this is one of the many legal cases with very serious legal issues that Donald Trump and his legal team are actively working to combat right now. Now, there's also Jack Smith's January 6th case, which was redrafted after the immunity ruling. Do you think there is substance to this case? And what are the chances of this one moving forward? Well, look, again, we're in unprecedented territory. Essentially what Jack Smith did, he issued something called a superseding indictment. It just means that he amended the indictment. Now, ordinarily a superseding indictment, that's typically bad news for criminal defendants because usually it means that a prosecutor in a case has added additional charges against that defendant. But that's not what happened in this Washington, D.C. case that special prosecutor Jack Smith has brought. He left in place the original four charges that he brought against Donald Trump, but he essentially changed the factual basis underlying those charges. He removed certain facts related to Donald Trump's discussions with Justice Department lawyers because the U.S. Supreme Court said that Donald Trump enjoyed absolute immunity for those discussions. That was part of his job as president, so he can't be prosecuted for that. Jack Smith also took pains in other places throughout the indictment to make clear that in his view, certain actions that Donald Trump took in the aftermath of the 2020 election were taken in either his personal capacity or his political capacity, but not in his official capacity as president. And so that, again, this immunity question is one that Judge Tanya Chutkan, the federal judge who's overseeing this D.C. case brought by Jack Smith, that she will likely have to rule on as well. Judge Chutkan will likely also have to rule on whether or not Jack Smith was constitutionally appointed. Keep in mind, that's what Judge Eileen Cannon of Florida used to dismiss the documents case against Donald Trump, but Judge Chutkan hasn't addressed that issue in this Washington, D.C. case yet. Jack Smith, certainly not to be confused with Jack Smith as if we haven't confused our viewers enough with this litany of cases. Jack Smith, senior legal fellow at the Heritage Foundation. Thank you so much. Of course. Thank you.