The Supreme Court’s recent ruling on presidential immunity will further delay former President Donald Trump’s criminal case in Washington related to his efforts to stop the transfer of power before the January 6 Capitol attack. This decision makes it highly unlikely that Trump’s trial will start before Election Day.
The ruling sets the stage for hearings before U.S. District Judge Tanya Chutkan to determine which allegations in special counsel Jack Smith’s indictment should be considered official acts and thus potentially immune from prosecution. These decisions could then be subject to further appeal, potentially delaying a trial until well into 2025. If Trump wins in November, a trial may not happen at all.
The conservative majority, in a 6-3 decision, ruled 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.” The government must rebut Trump’s presumption of immunity when there’s a close call on those outer perimeters. The court’s three liberal justices warned that this decision could have “disastrous consequences” for the United States.
Chief Justice John Roberts, writing for the majority, stated that Chutkan must decide if the indictment could proceed after removing allegations for which Trump can’t be charged, such as his dealings with the Justice Department. The majority also ruled that lower courts “may not inquire into the President’s motives” when distinguishing between official and unofficial conduct.
Smith’s team is likely to argue that all charges against Trump can stand even without the allegations about his efforts to use the Justice Department to overturn his election loss. However, the Supreme Court’s decision ensures that there will be no criminal accountability for Trump’s attempts to stop the transfer of power before the presidential election in November, Congress’s certification of the election result on January 6, 2025, or the next presidential inauguration on January 20, 2025.
The case, U.S. v. Trump, has been pending in federal court in Washington for 11 months since Trump was indicted on August 1, 2023. Originally, the trial was supposed to start this past March, but delays due to the federal appeals court process and the Supreme Court have pushed it back.
Chutkan could set a briefing and hearing schedule that would allow for evidentiary hearings to provide additional insights into what Vice President Mike Pence and Trump appointees said about his efforts to remain in power by promoting false claims of fraud after losing the 2020 election to President Joe Biden.
Former federal prosecutor and MSNBC legal analyst Andrew Weissmann commented on Monday, “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.”
Weissmann also highlighted the gravity of the court’s decision, saying, “The president’s interactions with the Department of Justice are absolutely immune? Terrifying decision.”
Chief Justice Roberts noted that distinguishing a president’s official actions from unofficial actions “can be difficult” and said this analysis “is best left to the lower courts to perform in the first instance.” Here is a breakdown of the court’s guidance:
The court ruled that Trump’s interactions with Justice Department officials as he sought to overturn the 2020 election results are “absolutely” immune from prosecution. This includes his efforts to push for official investigations into his unfounded claims of widespread voter fraud.
Trump’s interactions with Pence, state officials, and private parties pose ‘difficult questions’:
The court said that Trump’s pressure on Pence, state officials, and his communications with private parties and public comments require further analysis by the lower courts.
Trump’s efforts to get Pence to alter the election results during the January 6 certification process are considered “official conduct,” so Trump would enjoy a presumption of immunity. The burden will be on Smith’s team to rebut this presumption.
Whether Trump’s attempts to get officials in Georgia and other states to overturn election results constitute official actions requires a detailed analysis of the indictment against him.
The court ruled that Trump’s tweets and public addresses about the election are “likely to fall comfortably within the outer perimeter of his official responsibilities,” though there may be contexts where he speaks in an unofficial capacity. Chutkan will need to determine whether this conduct is official or unofficial.
The court noted that whether Trump’s tweets and speech on January 6 are considered official conduct depends on the content and context of each communication. This analysis is best performed by the District Court.
The court held that if an allegation is deemed an “official act,” prosecutors cannot introduce “testimony or private records of the President probing the official act itself.” However, public records can be used to show the President performed the official act.
Overall, the Supreme Court’s decision allows prosecutors to use public evidence to provide context for unofficial acts, even if Trump can’t be charged for the official conduct itself.