Presidential Immunity: Trump v. US

A Bad Day for Special Counsel Jack Smith

I planned to write this yesterday but life got in the way.

After flight delays and illness, I first read the Supreme Court’s opinion in Trump v. United States – the case resolving the issue of Presidential immunity – on my phone as I sat in the hallway of the third floor of a hotel. Next to me, dreaming peacefully in her stroller, was our 10-month-old baby girl. This dark corner of the hallway was the quietest place I could find (the room was too bright). There were more comfortable spots but silence was necessary. Sometimes you’ll do anything for a nap.

Now let’s get to it. For background, Chief Justice John Roberts, in writing for the majority, answered the following question:

“Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

The Court provided three answers based on the classifications of the President’s conduct:

1. A President has absolute immunity when he exercises his core constitutional powers: “Congress may not criminalize the President’s conduct in carrying out the re­sponsibilities of the Executive Branch under the Constitu­tion.”

2. A President has presumptive immunity from criminal prosecution for his acts within the outer perimeter of his official responsibility. This covers actions “so long as they are not manifestly or palpably beyond his authority.”

3. A President has no immunity for his unofficial acts.

With the basics of immunity being established, the Court then had to distinguish Trump’s official acts from his unofficial acts. The first part of that inquiry was to assess “the President’s authority to take that action.” This assessment must be made at the “outset of a proceeding.”

The President’s duties, as Chief Justice Roberts observed, “are of unrivaled gravity and breadth,” and include serving as the Commander in Chief, conducting foreign policy and diplomacy, managing matters relating to terrorism, trade, and immigration, and faithfully executing this nation’s laws.

While a President is without the power to act unlawfully or to exceed his constitutional authority, courts “have no power to control the President’s discretion when he acts pursuant to the powers invested exclusively in him by the Constitution.” If a President acts “within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination.”

Likewise, Congress cannot restrict the President’s “actions on subjects within his conclusive and preclusive constitutional authority.” Congress “may not criminalize the President’s actions within his exclusive constitutional power.”

With the doctrine of the separation of powers and the responsibilities of the President in mind, the Court placed boundaries on this official/unofficial determination. We’ll focus on two in particular. First, courts may not “deem an action unofficial merely because it allegedly violates a generally applicable law.” Second, “in dividing official from unofficial conduct, courts may not inquire into the President’s motives.” Without this limitation, the Executive would be crippled and even his undoubtedly constitutional acts would be subject to criminalization and judicial review.

As the Court explained:

“Such an inquiry would risk exposing even the most obvious instances of of­ficial conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II in­terests that immunity seeks to protect.”

Immunity Applied to the Indictment: Interactions with DOJ Officials

The Court next had to apply these principles to the DC indictment, which charges Trump for conduct during his Presidency: (1) conspiracy to defraud the United States in violation of 18 USC § 371; (2) conspiracy to obstruct an official proceeding in violation of § 1512(k); (3) obstruction of, and attempt to obstruct, an official proceeding in violation of § 1512(c)(2), § 2; and (4) conspiracy against rights in violation of § 241.

The Court began with the indictment’s allegations that Trump unlawfully threatened or otherwise attempted to influence his Acting Attorney General and other DOJ officials:

“According to the indictment, Trump met with the Acting Attorney General and other senior Justice Department and White House officials to dis­cuss investigating purported election fraud and sending a letter from the Department to those States regarding such fraud. The indict­ment further alleges that after the Acting Attorney General resisted Trump’s requests, Trump repeatedly threatened to replace him.”

Chief Justice Roberts observed that the President’s “management of the Executive Branch requires him to have unrestricted power to remove the most important of his subordinates — such as the Attorney General — in their most important duties.” This is part of his Constitutional mandate to “take Care that the Laws be faithfully executed.”

This conduct, therefore, implicates “conclusive and preclusive Presidential authority.” Special Counsel Smith’s allegations that the requested DOJ investigations were “shams or proposed for an improper purpose” were immaterial and could not divest the President of his “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.”

For those reasons, the Court concluded that “Trump is therefore absolutely immune from prosecution for the al­leged conduct involving his discussions with Justice De­partment officials.”

Immunity Applied to the Indictment: Interactions with VP Pence

The Court then considered the indictment’s allegations that Trump “attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceed­ing to fraudulently alter the election results, and “several con­versations in which Trump pressured the Vice President to reject States’ legitimate electoral votes or send them back to state legislatures for review.”

Special Counsel Smith was dealt another blow: “Pre­siding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a consti­tutional and statutory duty of the Vice President,” and Trump’s discussions with Pence concerning his role at the certification involves official conduct. Thus, “Trump is at least presumptively immune from prosecution for such conduct.”

But that doesn’t stop the inquiry. This is a presumption that can be rebutted on remand to District Court Judge Tayna Chutkan:

“It is ultimately the Government’s burden to rebut the presumption of immunity. 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.”

Immunity Applied to the Indictment: Other Communications

The Court also looked to other allegations in the indictment that involved “Trump’s interactions with persons outside the Executive Branch: state officials, private parties, and the general public.” Much of this has to do with the certification of electors or challenges of elections in the states of Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin.

This conduct was assessed as not being “neatly categorized as falling within a particular Presidential function.” The Court noted that this was due to the “lack of factual analysis by the lower courts, and the absence of pertinent briefing by the parties” – issues caused by the lower courts expediting the case. For these reasons, the Court remanded the case to the District Court to determine “whether Trump’s conduct in this area qualifies as official or unofficial.”

Immunity Applied to the Indictment: January 6

Finally, the Court assessed the indictment’s “various allegations re­garding Trump’s conduct in connection with the events of January 6” – including Trump’s Tweets and his public address at the Capitol.

And again, the Court had insufficient information, such as the organization of the January 6 rally and the context of Trump’s tweets, to classify each communication. It therefore remanded to the District Court “to determine in the first instance whether this alleged conduct is official or unofficial.”

Admissible Evidence

Special Counsel Smith contended that jury should be able to consider evidence concerning a President’s official acts “for limited and specified purposes,” and that such evidence would “be admissible to prove, for example, Trump’s knowledge or notice of the falsity of his election-fraud claims.”

The Supreme Court shot that down, concluded that this “threatens to eviscerate” Presidential immunity” and that “it would permit a prosecutor to do indirectly what he cannot do directly—in­vite the jury to examine acts for which a President is im­mune from prosecution to nonetheless prove his liability on any charge.” It further raises “a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office.”

Justice Thomas on the Appointment of Special Counsel Smith

In his concurring opinion, Justice Clarence Thomas highlighted “another way in which this prosecution may violate our constitutional structure:

“I am not sure that any office for the Special Counsel has been established by law as the Constitution requires.”

To summarize, the basis for his concurrence is that, by the Constitution, only Congress can “create federal office by Law.” Thus, if there “is no law establishing the office that the Special Counsel occupies,” then Special Counsel Smith is not “duly authorized” and “he cannot proceed with this prosecution.”

Justice Thomas recommended that the lower courts should “answer these questions concerning the Special Counsel’s appointment before proceeding.” This very issue is before Judge Cannon in the Southern District of Florida – Trump’s attorneys will certainly put Judge Thomas’s views on her radar. We note that no other Justice joined Thomas’s concurring opinion.

The DC Case: what does Special Counsel Smith do next?

It’s most likely that Special Counsel Smith filed a superseding indictment which pares down the indictment to remove the allegations and alleged criminal violations (if any) concerning Trump’s official acts as President. This possibility has been discussed for weeks by Special Counsel Smith’s allies.

For the remainder of the unresolved issues – the Tweets and the J6 rally, the communications outside the Executive concerning alternative electors – Smith still charges that conduct and leaves Judge Tanya Chutkan to resolve those immunity issues. There’s little doubt that Judge Chutkan, who has been consistently hostile to Trump and, after briefing and hearings and examination (and cross) of witnesses, will rule in Special Counsel Smith’s favor and conclude that the presumption of immunity has been overcome and that other conduct at issue is not “official conduct.” But that is a time consuming process and Judge Chutkan’s decisions can be appealed. Trump won’t be going to trial in DC before the election.

The Florida Case

How does Presidential immunity apply to Trump’s case pending in the Southern District of Florida?

The charges in the Florida case relate to conduct that occurred after Trump’s presidency: January 20, 2021 through the summer of 2022 for Counts 1-32 (Willful Retention of National Defense Information); May 11, 2022 through August 2022 for Counts 33-37; June 3, 2022 for Count 38; and June 22, 2022 through August 2022 for Counts 40-41. Materials may have been moved while he was still President, but the charges themselves focus on time periods after he left office.

As we discussed earlier, however, Justice Thomas’s concurring opinion may have some weight as Judge Cannon considers the challenge to Special Counsel Smith’s appointment.

The New York Case

We conclude with the New York case.

Today, Judge Juan Merchan rescheduled Trump’s sentencing from July 11, 2024 to September 18, 2024 so that the parties can brief the Court on the Supreme Court’s opinion in Trump v. United States.

Important to the New York case is the Supreme Court’s discussion that a prosecutor cannot “invite the jury to examine acts for which a President is im­mune from prosecution to nonetheless prove his liability on any charge.” A prosecutor may not “admit testimony or private records of the President or his advisers probing the official act itself,” as this presents a “unique risk” that the jury’s deliberations would be prejudiced.

During the trial, Judge Merchan allowed evidence of then-President Trump’s Tweets, public statements, and oval office meetings. As Trump’s attorneys argued yesterday, “this official-acts evidence should never have been put before the jury.” This is no mere harmless error. While it’s doubtful that Judge Merchan agrees (he’s almost anti-Trump as Judge Chutkan), this is solid grounds for appeal.

Addendum:

The Georgia case is worth discussing. Trump is alleged to have violated Georgia’s RICO statute and a number of other Georgia laws, including solicitation of violation of oath by public officer, conspiracy to commit forgery, conspiracy to commit false statements/writings, conspiracy to file false documents, and filing false statements and writings.

The Fulton County indictment is nearly 100 pages and we won’t go through it line by line. But we will provide a brief example of the issues that indictment now faces with the Supreme Court’s ruling.

There are 161 alleged acts relating to the RICO conspiracy, many of which relate to acts or comments he made during his Presidency. These include: alleged “false statements” about voter fraud; meetings with Michigan politicians at the Oval Office concerning election fraud; a White House meeting with Pennsylvania politicians regarding election fraud; meetings with Sidney Powell and others at the White House to determine next steps; and Tweets concerning election fraud in Georgia (not to mention Tweets about TV programming and live public hearings).

All of these “acts” are at least debatably covered by Presidential immunity under Trump v. United States, and the trial court will have to make determinations on whether immunity applies to each. Fulton County’s case against Trump could be significantly reduced, though outright dismissal is a challenge based on the broadness of Georgia’s RICO statute.