The conservative majority’s decision will likely set off hearings to determine what allegations in Trump’s federal interference case are official acts and thus potentially immune.
Trump calls Supreme Court ruling on immunity a ‘big win’
WASHINGTON — The Supreme Court’s presidential immunity decision will further delay former President Donald Trump’s Washington criminal case related to his efforts to stop the transfer of power in the lead-up to the Jan. 6 attack on the U.S. Capitol, virtually guaranteeing that Trump’s trial won’t start before Election Day.
Instead, the high court’s ruling sets the stage for hearings before U.S. District Judge Tanya Chutkan on what allegations in special counsel Jack Smith’s indictment should be considered official acts and, therefore, potentially immune from prosecution. Her ultimate decisions could then be subjected to further appeal, meaning that a Trump trial is unlikely to happen until well into 2025. If Trump wins in November, a trial is unlikely to happen at all.
The conservative majority ruled in a 6-3 opinion that Trump is entitled to absolute immunity for core presidential functions and “at least a presumptive immunity from criminal prosecution” for acts “within the outer perimeter of his official responsibility.” He is not entitled to any immunity for unofficial acts, the court said, but the burden is on the government to rebut Trump’s presumption of immunity when there’s a close call on those outer perimeters.
The court’s three liberal justices said the conservative majority’s decision “will have disastrous consequences“ for the United States.
The majority decision said that Chutkan must decide whether the indictment could be supported after removing allegations for which Trump can’t be charged, like his dealings with the Justice Department. Additionally, the majority said that lower courts “may not inquire into the President’s motives” when dividing up official and unofficial conduct.
Smith’s team is likely to argue that all of the charges against Trump can stand even with the elimination of the allegations about his efforts to use the Justice Department’s power to overturn his election loss.
Regardless of that outcome, the Supreme Court’s decision on Monday virtually guarantees that there will be no criminal accountability for Trump’s attempts to stop the transfer of power before the presidential election in November, before Congress certifies that election result on Jan. 6, 2025, or before the next presidential inauguration on Jan. 20, 2025.
U.S. v. Trumphas been pending in federal court in Washington for 11 months, since Trump was indicted on Aug. 1, 2023. The case was originally supposed to go to trial this past March, and a jury would have almost certainly returned a verdict by now had the Trump case proceeded on Chutkan’s original schedule. Instead, the case was delayed as it made its way through the federal appeals court process and the Supreme Court.
But Chutkan could quickly set a briefing and hearing schedule in the case that would allow for evidentiary hearings that may shine additional light on what Vice President Mike Pence and Trump appointees said about his efforts to stay in power by boosting false claims of fraud after he lost the 2020 election to President Joe Biden.
“At least that is a way for the public to hear additional evidence from the likes of former Vice President Pence, from prior general counsels and White House counsels who worked for the White House under President Trump,” Andrew Weissmann, a former federal prosecutor who worked on Robert Mueller’s special counsel investigation and MSNBC legal analyst, said Monday.
“The allegations with respect to the Department of Justice are off the table, the president, or former president, has been found absolutely immune, which is a really scary thought,” Weissmann said Monday. “Just think about that: The president’s interactions with the Department of Justice are absolutely immune? Terrifying decision.”
Chief Justice John Roberts, in his majority opinion, wrote that distinguishing a president’s official actions from his unofficial actions “can be difficult,” and said the analysis is “best left to the lower courts to perform in the first instance.” Here’s a breakdown of the guidance the court’s conservative majority offered for Chutkan to consider.
Trump is ‘absolutely’ immune from prosecution for his dealings with DOJ
The conservative majority ruled that Trump’s interactions with his Justice Department officials as he sought to overturn the 2020 election results and pushed for official investigations into his unfounded claims of widespread voter fraud were “absolutely” immune from prosecution, though the indictment alleged that Trump was using his official power for his own personal interests, not those of the country.
“Certain allegations — such as those involving Trump’s discussions with the Acting Attorney General — are readily categorized in light of the nature of the President’s official relationship to the office held by that individual,” the conservative majority found.
“The indictment’s allegations that the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,” the majority ruled. “Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”
Trump’s interactions with Pence, state officials and private parties pose ‘difficult questions’
The Supreme Court said that Trump’s interactions with Pence, Trump’s pressure campaign on state officials, his communications with private parties and his public comments “present more difficult questions” when it comes to immunity. Mostly, though, the conservative majority left those questions for the lower courts to answer, following the guidance it laid out in its opinion.
“Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first instance,” Roberts wrote.
OK, what about the Pence pressure campaign specifically?
Trump endeavored to enlist Pence “to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results,” according to Smith’s indictment. The discussions about official responsibilities between Pence and Trump were “official conduct,” the court said, including discussions of the Jan. 6 certification process, so Trump would enjoy a presumption of immunity under their ruling.
The burden will be on Smith’s team to “rebut the presumption of immunity,” Roberts wrote for the majority. “We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.”
What about Trump’s communications with state officials?
Whether Trump’s attempts to get officials in Georgia and other states to overturn the election results in his favor constitute official actions requires a “close analysis” of the indictment against him, the court ruled.
“Unlike Trump’s alleged interactions with the Justice Department, this alleged conduct cannot be neatly categorized as falling within a particular Presidential function. The necessary analysis is instead fact specific, requiring assessment of numerous alleged interactions with a wide variety of state officials and private persons,” Roberts wrote for the majority.
Roberts noted that the government and Trump’s legal team “starkly disagree on the characterization of these allegations,” as demonstrated during oral arguments, and that additional arguments should play out in Chutkan’s court.
“The concerns we noted at the outset — the expedition of this case, the lack of factual analysis by the lower courts, and the absence of pertinent briefing by the parties — thus become more prominent. We accordingly remand to the District Court to determine in the first instance — with the benefit of briefing we lack — whether Trump’s conduct in this area qualifies as official or unofficial,” they ruled.
And Trump’s tweets?
Trump’s spreading lies about the election through tweets and public addresses is “likely to fall comfortably within the outer perimeter of his official responsibilities,” the majority ruled, though it said there may be “contexts in which the President speaks in an unofficial capacity — perhaps as a candidate for office or party leader.”
The majority said that Chutkan will need to “determine in the first instance whether this alleged conduct is official or unofficial,” indicating that those initial decisions by Chutkan could be subject to additional review.
“On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution,” the majority ruled. “And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct. Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.”
What about Trump’s actions on Jan. 6?
While the president has the power of the bully pulpit and is free to speak “forcefully or critically, in ways that the President believes would advance the public interest,” there might be contexts in which he speaks in an unofficial capacity, the majority ruled. Drawing the line here, the court said, “may prove to be challenging” and requires a fact-specific analysis.
Whether Trump’s tweets in the lead-up to and on Jan. 6, 2021, his speech that morning urging supporters to march to the Capitol and his “other communications on January 6 involve official conduct may depend on the content and context of each,” the court ruled. “Knowing, for instance, what else was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic communications and in organizing the rally, could be relevant to the classification of each communication.”
“This necessarily factbound analysis is best performed initially by the District Court,” the majority continued. “We therefore remand to the District Court to determine in the first instance whether this alleged conduct is official or unofficial.”
Jack Smith’s team can still rely upon public evidence at trial
The Supreme Court held if a certain allegation in the indictment is determined to be an “official act,” prosecutors cannot introduce “testimony or private records of the President probing the official act itself.”
However, the court left a path for prosecutors to show jurors evidence of official acts if, and only if, that evidence can be found in the public record.
“The prosecutor may point to the public record to show the fact that the President performed the official act,” Roberts wrote. “And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act.”
So if there is video of Trump speaking to the media or otherwise discussing any of the overt acts that are included in the indictment, those statements could be introduced as evidence, whether they are official or not. What prosecutors would not be able to do is put someone like former White House chief of staff Mark Meadows or another presidential adviser on the witness stand and have them tell jurors about their official discussions with Trump or what his motives may have been in taking any official action.
Overall, that language will give prosecutors a way to show jurors the context in which indicted unofficial acts were taken, even if Trump can’t be charged for the official conduct itself.
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This story was originally appeared on NBC News
