WASHINGTON (CN) — The odds are slim that Donald Trump’s trial in Washington will proceed before Election Day after the Supreme Court on Monday recognized broad presidential immunity from criminal prosecution. But a legal test based on the decision could still put the former president’s conduct in the spotlight.
“The decision today does set up a test which now needs to be adjudicated in a mini-trial,” Norm Eisen, who served as special counsel to the House Judiciary Committee during the first Trump impeachment, said during a press briefing following the ruling.
The high court in its historic 6-3 ruling stopped short of deciding whether Trump’s actions as described in his four-count indictment were official acts, and therefore immune from prosecution, or unofficial acts that could lead to a trial. Instead, the justices left that task to U.S. District Judge Tanya Chutkan.
Chief Justice John Roberts ordered Chutkan to conduct a close analysis of Trump’s actions to distinguish between official and unofficial acts.
“What that does is it slows things down,” said Matthew Seligman, a fellow at Stanford's Constitutional Law Center, said during Monday's press call. “It makes it very unlikely at this point that we'll see even the beginning of a trial before the election, but it also means that the district court is going to have proceedings — and potentially extensive proceedings — that put on evidence about the conduct in this case.”
On Aug. 1, 2023, special prosecutor Jack Smith charged Trump with four counts: conspiracy to defraud the United States, conspiracy against rights, conspiracy to obstruct an official proceeding and outright obstruction of an official proceeding.
In Chutkan's courtroom, Trump and Smith will introduce evidence and the former president could even testify.
“This is a poor substitute for an actual trial that puts on the issue of guilt or innocence to a jury of former President Trump's peers," Seligman said, "but it is an opportunity to bring much of this evidence to light in an official judiciary meeting so the American people can at least see some of the gravity of Trump's crimes as they make their decision about whether to return him to office.”
The conservative majority gave Chutkan a head start by declaring some of Trump’s actions as official, like his communications with the Justice Department — including his threat to replace then-acting Attorney General Jeffrey Rosen — regarding potential election fraud investigations as a way to convince certain swing states to replace their legitimate electors with Trump’s fraudulent ones.
Trump’s communications to pressure former Vice President Mike Pence to use his ceremonial role over Congress’s certification of the electoral ballots to instead certify ballots from Trump’s false electors — part of the “Green Bay Sweep” scheme hatched by now-imprisoned Peter Navarro and Steve Bannon — also receive “presumptive immunity,” the court said.
The majority created three levels on which a president’s actions can fall: core official acts (such as pardons); official acts within the “outer perimeter” of a president’s duties; and unofficial acts. Core acts receive absolute immunity. Unofficial acts receive none whatsoever.
Official acts within the “outer perimeter” constitute the vast majority of a president’s actions, and should be presumed to carry immunity, the majority found. That presumption sets a high bar for prosecutors to clear — though just how high it is remains to be tested.
Roberts in his opinion left the door open for Smith to prove that Trump’s communications with Pence were unofficial, but he didn't leave much space. He suggested in the opinion that discarding immunity for those communications would likely “hinder the president’s ability to perform his constitutional functions.”
That leaves Chutkan to decide whether Trump’s effort to push state legislators and election officials in Arizona, Georgia, Michigan, Pennsylvania and Wisconsin to forego their electoral counts and vote for Trump should be considered within the outer perimeter or unofficial.
She will also need to examine Trump’s public statements and social media posts, which Roberts deemed likely to “fall comfortably” within the outer perimeter.
In addition to remarks like campaign statements, which may be unofficial acts, Chutkan will need to review the ones featured in Smith’s indictment — including Trump's comments on Jan. 6, 2021, at the Ellipse and on X (formerly Twitter) lamenting Pence’s failure to do what “should have been done.”
Trump’s attorney admitted during oral arguments that some of the former president’s conduct constituted unofficial acts, but the court’s ruling may prove problematic for prosecutors regardless: It keeps out evidence involving Trump's officials acts that Smith’s team wanted jurors to be able to consider, even if he did not face charges over them.
For example, Smith suggested some official acts could be used to prove that Trump knew his election fraud claims were false.
Roberts said that proposal “threatens to eviscerate the immunity we have recognized,” and barred the former president’s immune conduct from being presented to a jury.
Last Friday, the high court ruled in favor of a Capitol rioter, severely limiting the obstruction of an official proceeding charge to only apply to document destruction or alterations. While the ruling is likely to have minimal impact on Trump’s case, he can still raise a challenge that the obstruction charges should be dismissed, further gumming up the works as Chutkan applies the new immunity test.
Legal experts said the proceedings should be scheduled imminently so the American public can have some insight into the case before voting in November. “It would be a substantial legal proceeding that would shed considerable light on the attempted coup of 2020,” Eisen said.
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