Table of Contents
The Supreme Court’s ruling on presidential immunity will soon return to the judge hearing the case from which it arose: the criminal prosecution of Donald J. Trump on charges of plotting to overturn the 2020 election.
And if that happens, Judge Tanya S. Chutkan will face a tough task.
Judge Chutkan will have to sift through the 45-page indictment and decide which of the many charges can proceed and which should be dismissed.
The Supreme Court has ruled that former presidents are fully protected from charges arising from their core constitutional duties, but that they can be prosecuted for unofficial acts they performed in the White House.
The court also created a third, more complicated category that will likely be the focus of Judge Chutkan’s work. The court said that Mr. Trump is presumptively immune from prosecution for all official acts, but that prosecutors can overcome that presumption if they can show that bringing charges related to official acts would not result in infringements on “the authority and functions of the Executive Branch.”
It is unclear when Judge Chutkan will begin considering how much of the charge will stand, but the Supreme Court gave her some guidance — albeit a very confusing one — on how to approach the questions raised by the ruling.
The indictment filed against Trump by Washington special counsel Jack Smith accuses the former president of using five key methods to influence the last election.
Below you can read what the court said about each of these cases.
Putting pressure on the Ministry of Justice
Prosecutors say Trump tried to cling to power in part by asking two top officials in his Justice Department — Jeffrey A. Rosen, the acting attorney general, and Richard P. Donoghue, Rosen’s deputy — to conduct sham investigations in an attempt to validate Trump’s claims that the election was marred by widespread fraud.
The purpose of those investigations, both men have said, was to allow Trump and Republicans in Congress to allege that the vote count was rigged.
When the two officials refused Trump’s request, telling him there was no evidence of fraud, Trump tried to replace them with a loyalist, Jeffrey Clark, who was then in charge of the Justice Department’s civil division.
Mr. Clark offered to give Mr. Trump what he wanted, prosecutors say. He promised to send a letter to the governor of Georgia stating that the department had indeed found irregularities in the election and asking him to convene his state legislature so it could create an alternative slate of electors supporting Mr. Trump.
In its ruling, the Supreme Court said that Mr. Trump was absolutely immune from charges based on those communications because his conversations with the Justice Department — even about false investigations — were part of his core constitutional duties. The court’s decision means that part of the charges will almost certainly be dismissed, with Judge Chutkan having no substantive say on the matter.
Moreover, the court’s ruling also likely means that Mr. Smith cannot rely on testimony from department officials to prove other parts of his case. Those officials could include not only Mr. Rosen and Mr. Donoghue, but also former Attorney General William P. Barr, who told Mr. Trump that the election was not rigged.
That’s because the court ruled that evidence relating to a president’s official actions cannot be used to support charges, even if they arise from personal actions.
Another way Trump tried to cling to power, prosecutors say, was to launch a campaign to pressure his vice president, Mike Pence, to try to change the election results during a proceeding intended to certify them. That proceeding took place at the Capitol on Jan. 6, 2021.
In his role as President of the Senate, Mr. Pence presided over the final count of the Electoral College votes that would ultimately certify Joseph R. Biden Jr.’s victory.
But in conversations with Pence and his aides in the run-up to Jan. 6, Trump and his allies tried to pressure the vice president to reject the legitimate electors or, alternatively, send them back for review by state legislatures.
Writing for the court majority, Chief Justice John G. Roberts Jr. devoted several paragraphs of the immunity decision to the close working relationship between presidents and vice presidents.
“When the President and Vice President discuss their official responsibilities, they are behaving officially,” Chief Justice Roberts wrote.
That assertion seems to suggest that the court’s majority believes that Mr. Trump should be immune from prosecution for many, if not most, of his dealings with Mr. Pence. Yet Chief Justice Roberts also noted that the vice president’s role in overseeing the election certification by presiding over the Senate “was not an ‘executive branch’ function.”
The chief justice left open one more opportunity for Smith to argue that the charges against Pence were valid: he said that Trump, as president, had played no formal role in the certification at the Capitol.
“With particular regard to the certification process,” the chief justice wrote, “Congress has enacted extensive legislation to define the role of the vice president in counting the electoral votes, and the president plays no direct constitutional or statutory role in that process.”
Judge Chutkan will have to decide whether the Supreme Court left enough room to uphold the portions of the indictment involving Mr. Pence. Whatever she decides, it is almost certain to be appealed by one side or the other.
Manipulating State Legislators and the Fake Voter Plan
In its ruling, the court considered Trump’s next two attempts to maintain his grip on power together, since they both involved efforts to enlist the help of state officials and private parties — or, as Chief Justice Roberts put it, “persons outside the executive branch.”
Almost immediately after the election was called for Mr. Biden, prosecutors say, Mr. Trump made a flurry of phone calls and meetings with election officials and state lawmakers in key swing states like Arizona, Georgia and Michigan, all of which he had lost. The goal was to convince them not to certify the slates of electors promised to Mr. Biden.
Mr. Trump and his allies also worked on a plan to create their own slates of voters that falsely declared that Mr. Trump had won in states where he had not. This so-called fake voter scheme eventually involved dozens of lawyers, campaign workers and Republican state officials.
Mr. Trump has asserted that all of these efforts were undertaken in his official role as president to “ensure the integrity and proper administration of federal elections,” Chief Justice Roberts wrote. And while that position turned Mr. Smith’s allegations on their head, the court’s majority appeared to embrace the idea.
As the chief justice noted, the president has broad discretion under the Constitution to “take care that the laws be faithfully executed,” including the laws governing how elections are conducted.
It seems he has the power to talk about elections with whomever he wants, even in a false manner.
“The President’s broad authority to speak out on matters of public concern does not preclude his public communications about the fairness and integrity of federal elections merely because he is seeking re-election,” Chief Justice Roberts wrote.
The court majority, however, recognized that Mr. Smith has a very different view of things, viewing Mr. Trump’s efforts in these areas not as official acts but rather as a “private scheme involving private actors.”
“Unlike Trump’s alleged interactions with the Justice Department, this alleged conduct cannot simply be categorized as falling within a specific presidential function,” Chief Justice Roberts wrote.
Judge Chutkan will have to weigh the tension between the Supreme Court’s findings in deciding whether to allow the charges related to the fake voter campaign and the pressure campaign on state officials to stand or to dismiss them.
Public statements about and on Jan 6
The Attorney General’s Office has not directly charged Trump with inciting the violence that broke out at the Capitol. However, they have indicated that if the election interference case ever goes to trial, they will blame Trump for the riots.
And they want to do this primarily by referring to the public statements he made on and in the run-up to January 6.
In late December 2020, for example, Trump summoned his followers to Washington with a Twitter message announcing that a “wild” rally would be held there on January 6. And on the day itself, he addressed a large crowd of his supporters near the White House, at one point telling them to “fight like hell” to save the country.
The court suggested that Trump might not be prosecuted for things he said during his speech or wrote on Twitter because, as the majority wrote, “most of a president’s public communications likely fall comfortably within the outer perimeter of his official responsibilities.”
If that is the case, it is possible that the Public Prosecution Service will not be allowed to submit the statements at all if the case comes before the court.
There was one caveat, however.
The majority said prosecutors could base charges on statements Trump made in his personal capacity as a candidate for office — which he was on Jan. 6. But the justices noted that there is no “clear line” between a president’s “personal and official business.”
