More than six months after special counsel Jack Smith asked the Supreme Court for expedited review, and more than two months after oral argument, the Supreme Court held on Monday what every reasonable American already understood: Presidents do not get blanket immunity for crimes committed in office. However, the right-wing majority put its thumb heavily on the scale, thereby chopping off part of the indictment (i.e. consultation with the Justice Department) and setting the stage for a complex evaluation by the lower court as to the remainder of the conduct (e.g. conversation with the vice president, public statements), which may still be subject to criminal prosecution.
Writing for the majority, Chief Justice John G. Roberts Jr. held: “We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former president have some immunity from criminal prosecution for official acts during his tenure in office.” He continued: “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.”
Which conduct falls within which bucket — absolute immunity, presumptive immunity or no immunity for unofficial conduct? Roberts explained:
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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. Other allegations—such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public—present more difficult questions. 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.
Definitely out of bounds: immunity “from prosecution for the alleged conduct involving his discussions with Justice Department officials.” With regard to conversations in which Trump attempted to pressure former vice president Mike Pence, the court held that he was “presumptively” immune. Here, Roberts gave a hint that the presumption of immunity could be rebutted: “With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process.” So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” That, however, will be left for the lower court.
As for the rest of the conduct, the court held effectively that it’s too hard to tell. Thus, all of the other conduct (e.g. pressuring Georgia to flip the vote, pressuring state electors) must go back to the lower court:
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. And the parties’ brief comments at oral argument indicate that they starkly disagree on the characterization of these allegations. 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.
Here, District Judge Tanya S. Chutkan must decide whether everything else is official or not. Roberts, however, bent over backward to suggest that even Trump’s tweets and incitement on the Mall of the mob might be official conduct. That too must be considered by the lower court. (“Whether the Tweets, that speech, and Trump’s other communications on January 6 involve official conduct may depend on the content and context of each. 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.”)
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Even more egregiously, Roberts holds that the excluded conduct (e.g. meeting with Justice officials) cannot be used even as evidence, for example, of Trump’s criminal intent. That was too much even for Justice Amy Coney Barrett, who did not join in that part of the opinion.
Roberts goes through pretzel-like contortions to create a question as whether the immunity presumption for Pence-related conduct can be rebutted and by refusing to say definitively that much of the conduct was unofficial. Here, he betrays the court’s ongoing effort to aid and abet Trump’s escape from justice. Of course, the public should be outraged at the audacity of Justices Clarence Thomas’s and Samuel Alito’s refusal to recuse. Thomas’s wife participated in conversations about the insurrection and attended the Stop the Steal rally; Alito showed his true colors by allowing an insurrectionist flag to be displayed above his house. The verdict they produced and the delay in deciding the case they contributed to disgrace the court and render this decision illegitimate in the eyes of millions of Americans.
So, what happens next? The case will go back to Chutkan to apply the ruling to the indictment of felon and former president Donald Trump. It seems obvious that if Smith does not voluntarily eliminate the consultation with Justice Department officials, Chutkan will order that dismissed as an element of the indictment. Beyond that she has two possible routes: she makes a decision based purely on the papers, taking the allegations as true, or she holds an evidentiary hearing to suss out the consequences of the court’s ruling.
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Given Roberts’s emphasis on the factual detail necessary to parse all the conduct at issue, it seems unlikely that she would be able to parse the issues simply on legal arguments. That leaves one obvious mechanism: hold an evidentiary hearing.
Writing for Lawfare, legal scholars Norm Eisen and Joshua Kolb have suggested that a “multiday evidentiary hearing to apply that test would constitute the mini trial... [to] allow a partial adjudication of Trump’s alleged misconduct in the form of determining whether or not his role in the attempted coup is immune from prosecution.” It would not produce a verdict, but it would provide ample visibility into the facts and help decide when Trump had acted within his core duties and when he acted as a candidate seeking office.
As the authors point out, this sort of proceeding took place in the Fulton County, Ga., case in which the trial judge needed to determine whether the cases against former chief of staff Mark Meadows and former Justice Department official Jeffrey Clark could be removed to federal court. There, the trial court heard evidence to determine if the alleged conduct was within the scope of their federal duties (hence, removable) or whether the conduct amounted to campaign activities (not removable). Each side called witnesses, the prosecution to show these were outside the president’s official duties and the defense to show they were within.
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That same sort of mini-trial to determine critical facts at issue in the Trump insurrection case could be conducted within days this summer. No delay is needed. The results could help expedite specific evidentiary issues at or before trial.
However Chutkan proceeds, Trump has succeeded with the help of an ethically compromised court on which two justices have obvious obligations to recuse. In delaying his reckoning beyond the election, if he wins, Trump might never come to justice. This outrageous abuse of power and blatant partisan favoritism should be evidence, if any more were needed, that this court has lost all legitimacy. Substantial reform will be essential to restore its credibility. And let’s not exempt Attorney General Merrick Garland, who inexcusably piddled around with low-level prosecutions as he held off on investigating Trump, losing months of valuable time. Both the court and the attorney general contributed to the disastrous dilemma: Voters will cast ballots without knowing whether Trump is guilty of committing egregious felonies.
We are therefore left with the least terrible option: a mini-trial partially to short-circuit the Trump delay gambit; afford voters an early look at the speedy trial that the people were denied and to which they are entitled; and provide voters with critical information before they cast their ballots
