If the Supreme Court rules that Donald Trump is immune from prosecution for crimes stemming from official actions he took as president, it would be a momentous decision for the future of the executive branch and American-style democracy.
But it is not at all certain that this ruling will dismiss the case of electoral subversion against the former president. In fact, there is a possibility that the court could issue such a ruling without altering the charges or the body of evidence that special prosecutor Jack Smith wants to present to a jury.
Trump faces four criminal charges for his efforts to overturn his 2020 election loss, but none focus exclusively on conduct Trump carried out in his capacity as president. Rather, the indictment tells a story that mixes both official and private acts, that is, actions that Trump carried out in his role as a candidate for office. He then states that each charge is derived from the whole.
Some of the accusations are that Trump spread false claims of election fraud, conspired to recruit false lists of voters in swing states, pressured Vice President Mike Pence to use his existence to block Congress’ certification of Joe Biden’s victory in the College Electoral and urged lawmakers to use the attack on the Capitol by his supporters to delay any vote.
So far, no court has decided which of Trump’s actions count as official presidential conduct and which private, unofficial campaign activities. But a week ago, during oral arguments before the Supreme Court, Judge Amy Coney Barrett hinted at the possibility that Smith could “simply proceed with conduct considered private activity and set aside official conduct.”
Crucially, however, a lawyer for Smith, Michael R. Dreeben, said that even if the court ruled out basing charges on Trump’s official actions, prosecutors believed they could still legally present evidence about official conduct as context. relevant information that would help jurors understand Trump’s private acts.
“We are facing an integrated criminal association made up of different elements,” said Dreeben. Trump, he added, used his official powers to try to make his private efforts to reverse the election results successful and the jury will have to look at the whole picture to understand the sequence, why each step occurred and the severity. of the behavior.
Dreeben added that the facts of Trump’s official acts are relevant to interpreting his “knowledge and intent” about his private conduct.
A Trump lawyer, D. John Sauer, urged the court to adopt a very different solution. Not only should he consider that Trump enjoys immunity for his official acts, but he should omit them from the case. Still, he acknowledged that Trump could be impeached for private actions while he was president.
“The official issue has to be completely removed from the indictment before the case can move forward,” Sauer stated.
But instead of removing mention of official acts from the case, Dreeben said, the judge should simply instruct jurors that they can consider information about Trump’s official actions only as a reference. They would add to the jury’s understanding of Trump’s knowledge and intentions regarding his private actions, but would not be subject to criminal culpability, Dreeben said.
Dreeben made an analogy with freedom of speech that is established in the First Amendment, but is also relevant evidence in a criminal case. A person cannot be charged with a crime because free speech is protected, but statements a defendant made can be presented as evidence to shed light on a motive.
Samuel Buell, a professor of criminal law at Duke University, said it was “quite common” for information to be admitted as relevant evidence even if it is not about an action that could be the subject of a criminal charge. He added that it is even more frequent in cases of behavior that lasts over time and involves the coordination of several people.
Still, this case, Buell noted, is complicated by its “novel territory.” Several judges, he said, have expressed concern about a ruling that would deter future presidents from exercising the powers of their office in a way the country needs for fear of future prosecutions.
The attempt to recruit fake lists of voters may better illustrate how competing visions of a solution could play out should the court rule that Trump cannot be impeached for his official actions.
According to the indictment, Trump worked with a private attorney to oversee the recruitment of electors and then pressured Pence to cite its existence as a reason to block the certification of Biden’s election victory.
If this effort to recruit false voters were considered an act that Trump carried out in his private capacity as a candidate for office, the jury could, of course, be informed of it. But in Sauer’s view, prosecutors would not be able to raise Trump’s subsequent attempt to convince Pence.
According to Dreeben, prosecutors could do so because it is relevant to understanding Trump’s motive for getting voters in the first place. In this case, the trial would be more or less the same, regardless of the court’s decision.
Should the judges narrow the types of actions that can be the basis for charges against Trump, it would raise the question of which conduct in the impeachment counts as official and which counts as private. It would not be surprising if courts ended up treating his interactions with executive branch subordinates like Pence and Justice Department officials as official, and his dealings with lawyers and campaign aides as private.
Whatever the court’s ruling, its decision to accept the immunity case has already helped Trump by delaying a trial that was scheduled for March. Trump has long followed the strategy of letting time pass on his legal problems, and if he can postpone the trial until after the election and become president again, he could easily file the case.
If the Supreme Court decides that Trump’s official acts enjoy immunity, the litigation will most likely return to the hands of Judge Tanya Chutkan, who will have to distinguish which alleged acts of the accusation are considered official and which are private.
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