How a judge will weigh immunity in Trump’s January 6 case

In the coming months, Judge Tanya S. Chutkan will be faced with what she recently called “a uniquely challenging” task. She will go through, line by line, the evidence that special counsel Jack Smith plans to present to a jury in support of his federal indictment charging former President Donald J. Trump with four criminal counts related to his plans to influence the 2020 election. to undo.

Her job is to determine which of the myriad specific allegations about Trump’s actions can survive the recent Supreme Court ruling granting presidents a broad form of immunity from criminal prosecution for most of their official actions. Here’s a look at the types of decisions Judge Chutkan will have to make many times.

If Mr. Trump took a specific action in his personal capacity as a candidate for office, rather than in his role as president, that action is considered unofficial, according to the Supreme Court ruling. Such acts are not covered by immunity, so evidence about them could be cited in court to support allegations that Mr. Trump illegally attempted to overturn the election, or even be introduced as context to convince a jury. help you understand the matter.

On the other hand, if the action falls within what the Supreme Court called the outer limits of presidential duties, it counts as official. In that case, the court is at least entitled to presumptive immunity, and the court should conduct additional analysis to decide whether this process is prohibited.

On issues like Mr. Trump’s efforts to strong-arm state officials to change the election results and his public lies that the election was stolen, prosecutors and lawyers are likely to disagree about whether Mr. Trump was acting as a candidate who was seeking another term, or as president who was constitutionally charged with overseeing the enforcement of federal election laws.

Under the Supreme Court’s new doctrine, “official” actions by Mr. Trump would fall into one of two categories. Some official acts are at the heart of the president’s exercise of executive power. In that case they are absolutely immune and no information about them can be used in his prosecution. Other official actions are more peripheral in nature, in which case prosecutors may still use the information about them in court, depending on the circumstances.

The Supreme Court has already declared that Trump’s interactions with Justice Department officials count as core executive branch activities because the Constitution charges the president with oversight of federal law enforcement. Mr. Smith has removed discussion of his alleged actions falling into that category from the indictment.

The Supreme Court has said that a president’s peripheral official actions are also presumptively immune. But depending on the circumstances, exceptions can be made so that the information can still be part of that president’s prosecution.

The test is whether prosecuting a former president for such an action risks encroaching on the authority and functions of the executive branch, thereby deterring future presidents from vigorously carrying out their responsibilities. If not, the act is not immune and evidence about it can be used in court.

The Supreme Court has said that the pressure Trump put on then-Vice President Mike Pence, in his capacity as president of the Senate, to halt congressional certification of Joseph R. Biden Jr.’s victory. fall under the exception, as the Constitution does not grant a role to the president or the executive in such procedures.

Judge Chutkan won’t make a decision on immunity until at least late October, when the defense and prosecution have finished submitting their own written assessments of the case. At that point, she could ask the two sides to further develop their arguments at a hearing in Federal District Court in Washington. Any ruling she makes on the issue of immunity will almost certainly be appealed, likely ultimately to the Supreme Court, which will have the final say on which parts of Trump’s indictment should be dismissed and which parts of the indictment can be dismissed. survive and be brought to justice. .