Presidential Immunity Ruling Stirs Sound and Fury

By: James Trusty

The immediate and eventual impact of the Supreme Court’s immunity decision in Trump v. United States is both considerable and dramatically misrepresented. The initial consequences include likely delay to the January 6 prosecution out of D.C. and the setting of hearings—in D.C., Georgia and south Florida—where the judges will be required to make  factual findings as to whether the evidence supporting the indictments reflect “official acts” of a president, “unofficial acts” of a personal nature, or “official acts” relating to the president’s core constitutional responsibilities.

In D.C., Judge Chutkan sided with Special Counsel Jack Smith in pushing for a comparatively expedited trial date based upon a nebulous “speedy trial” right of the public to see a leading presidential candidate tried during the week of Super Tuesday primary races. That same judge is now called upon to make specific factual determinations regarding the nature of the inventively criminalized conduct sprinkled throughout Smith’s insurrection-light indictment. The nature of that hearing’s procedure is hard to predict –  will there be expert testimony about presidential core responsibilities? Should the hearing require fact witnesses, particularly where the full context of President Trump’s comments is not included in the indictment (“go patriotically and peacefully”)? Will the government solicit dog whistle interpreters to opine that President Trump’s words were subtly designed to promote assaults on the police, like we saw in the Colorado ballot-disqualification litigation? While the hearing procedure is hard to discern, the timing of the hearing may not be—If Smith and Judge Chutkan remain consistent, they will announce the public’s burning desire to have this hearing yesterday, and the singular (and politically transparent) effort to treat the current administration’s nemesis different than any other defendant will continue.

Whatever the exact process and timing, the hearing requires classification of official/unofficial and then, if deemed official, whether the conduct is core constitutional or simply an official obligation in a lesser category of importance. Official acts relating to core constitutional duties are absolutely immune from prosecution. Personal acts receive no protection. And official acts that fall outside the core constitutional line are at least presumptively immune from prosecution, a fuzzy description that seemingly begs for more Supreme Court guidance. This lower court assessment of both act and intent is surprisingly challenging, although I suppose it is roughly parallel to civil rights litigation where the law enforcement officer’s qualified immunity for actions taken in the scope of his/her employment is reviewed in a pretrial hearing. Partisan pundits have criticized the Supreme Court’s majority for remanding the matter back to Judge Chutkan, but I can only imagine the armchair jurists’ reaction to a SCOTUS opinion that included their specific ruling on immunity for each aspect of the D.C. indictment – breathless shrieks of “overreach!” and “politicization!” would bounce through the cable networks like clockwork. Remanding for a fuller record is a conservative and respectful approach to the lower court’s typical role.

The bad news for newfound supporters of speedy trial demands being lodged on behalf of the public (i.e., by Jack Smith) is that even if the D.C. District Court chooses to ignore everyone’s calendars and set an immunity hearing in short order, the probable ruling will likely lead to yet another march through the Court of Appeals and to SCOTUS long before any actual trial could take place. Expect indignant findings that America “long ago rejected the idea of having a King” and assertions that immunizing President Trump invites a new age of murderous monarchs, ironically forgetting that President Obama has been accused of ordering a fatal drone strike against a U.S. citizen.

Whether presidential immunity will affect indictments that focus on pre-presidential activity (Alvin Bragg’s case) or post-presidential conduct (Mar-a-Lago) may prove surprisingly complicated to determine – introducing evidence from Hope Hicks in the New York trial, for example, now gives rise to an argument that using privileged behavior or words from such sources infects the seemingly safe territory of non-presidential conduct. Again, look for litigation, appeals, and possible SCOTUS interpretation before it is done.

While the opinion does not pre-ordain lower court findings on each allegation in the indictment, it does include a couple of intellectual landmines that may ultimately play out to the serious benefit of the former president. The first is an instruction that in dividing official from unofficial conduct, “courts may not inquire into the President’s motives.”[1] This is a logical restriction to prevent endless skepticism into motivation from translating official acts into personal ones, but it will prove a seriously disarming concept for prosecutors and judges who comfortably assume the worst about President Trump’s intentions.

The second restriction could have the potentially lethal effect of forcing Jack Smith to start from scratch with a new grand jury to avoid a contamination problem that appears inevitable to me. The Court ruled that “Presidents cannot be indicted based on conduct for which they are immune from prosecution.” A broad point that makes sense. What follows is the devil in the details: “On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct. Testimony…of the President or his advisers probing such conduct may not be admitted as evidence at trial.”[2] This language suggests that simply excising immunized portions of the indictment may not be enough—that the endless parade of witnesses before the grand jury who gave testimony without any executive privilege in play may have contaminated the indictment. Notice the inadmissibility language at the end of the Court’s comments talks about inadmissibility at trial, but the earlier components protect against indictment itself. I have no doubt that DOJ lawyers have huddled up to discuss this point, but I am not convinced that they have the capacity to choose any path other than the reckless one that sneers at the “political” Supreme Court and charges headlong into the abyss of eventual dismissal.

Many pundits, and even President Biden, has latched onto the parade of horribles put forth in Justice Sotomayor’s dissent. Coups and assassinations, according to those who use this hyperbolic rhetoric, are now official acts that receive absolute immunity. This claim is either dark fantasy or cheap passion, but it is not an actual analysis of the majority opinion. I have heard former federal judges blasting the 6-3 opinion on this basis, ruefully shaking their heads that the conservative justices must be paying back President Trump for their appointment to the Court. The ease with which a former federal judge can defame the high court’s members makes me question what kind of objective fact-finding such a judge must have done during her long career on the bench. But my bigger concern is that ordinary folks watching a judge claim that political hacks have now green-lit monarchial murder might actually consider it analysis, rather than the emotional drivel that it truly represents.

President Biden has normalized a reaction to bad news from SCOTUS that needs to stop. When this administration pushed its first plan for student loan relief, it expressly recognized that it may not be a constitutional tactic. Still, when SCOTUS invalidated the plan, President Biden took to the airwaves to denounce the Court. Tearing down public support for a branch of government to score cheap political points was, and remains, wrong. When the President announced that he, too, “dissented” from the Court’s immunity ruling last week, the strong signal was that conservative justices are political hacks and that court-packing or other radical dilutions of SCOTUS authority are once again fair game. How hard would it be for a president, a senior statesman, to simply say “we disagree  vehemently with the Court, but we fully respect that this is the law of the land, and we’ll act accordingly?”

Critics of SCOTUS involvement in this election need to recognize a fundamental reality that keeps driving the need for resolution of high-profile conflicts – the emergence of lawfare. New York prosecutors ran for office on the promise of going after President Trump. The clownish prosecution by Fani Willis similarly demonstrates highly political prosecutors inventively bending the law to reflect a target-first, evidence-second, mindset. And Jack Smith’s criminalization of speeches and document possession establishes singular treatment for one former president, and one only. SCOTUS cannot possibly be blind to the context that brings this controversial litigation to its doorstep—Lilliputian efforts to tie down a leading presidential candidate with endless civil and criminal matters on the eve of a hotly contested election is a context worthy of intervention.

At oral argument before the Court, the government’s talented appellate lawyer, Michael Dreeben, argued that inherent checks and balances, along with the fundamental good character of federal prosecutors, alleviated the need for any sort of presidential immunity. Justice Sotomayor echoed that contention, even suggesting that grand juries were significant counterweights to any sort of political motivation infecting an investigation. But take a look around these cases—Bragg inventing a bookkeeping felony on the word of a failed cooperator and serial liar (and thief), Willis emanating her “odor of mendacity” while publicly posing as a victim of racism, Smith and the D.C. courts eliminating attorney client privilege and executive privilege based primarily on ex-parte (i.e., unchallengeable) submissions, and a sworn allegation that a DOJ attorney extorted a defense attorney in an effort to force cooperation from his client, Walt Nauta. We are well past the time when we could assume all prosecutors act ethically and apolitically, despite the fact that most still fall into that category. As we once again witnessed last week, politicized prosecutors force courts to take forceful action in dreadfully high-profile cases.

[1] Trump v. United States, 603 U.S. ___, *4 (2024).

[2] Trump v. United States, 603 U.S. ___, *7 (2024).