The Supreme Court’s ruling on former President Donald Trump’s claim to immunity has reshuffled the deck for his election-related case in Washington while creating even more delays and uncertainty for the prosecution.
On July 1, a majority of the justices sent the former president’s case back to the district court with instructions that will limit the charges he faces.
The highly anticipated decision held that presidents enjoyed several tiers of immunity from prosecution: absolute immunity for acts that fall within their “conclusive and preclusive constitutional authority,” a presumption of immunity for their official acts, and no immunity for unofficial acts.
But while the Supreme Court decision gives a starting ground for determining what Trump can and cannot be charged with, it’ll be up to lower courts, and perhaps even future involvement from the Supreme Court, to figure out how this new standard will apply to Trump’s ongoing cases.
In the meantime, U.S. District Judge Tanya Chutkan could use various legal avenues to alter the case before a trial that was scheduled for March but is looking increasingly unlikely before the 2025 inauguration.
If he is elected in November, Trump is expected to order the prosecution dismissed, raising the prospect that the case will never reach a jury. Observers have speculated, however, that Chutkan could bring certain facts to light that are potentially damaging to the former president before the 2024 election.
For the present, however, the ruling is a major blow to Special Counsel Jack Smith’s election-related indictment by holding that many of the activities underlying his allegations were part of a president’s constitutional authority.
For instance, in the majority opinion Chief Justice John Roberts ruled that Trump’s communications with the DOJ had total immunity; his conversations with former Vice President Mike Pence about refusing to certify the election had “presumptive immunity” according to Roberts.
Roberts left it up to courts to determine whether Trump’s communications with alternate electors were immune.
The Supreme Court directed the district court to “assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.”
But although the Supreme Court’s majority affirmed immunity over certain communications, it indicated that some of the former president’s communications may have been in his unofficial capacity as a candidate or party leader.
Now, Chutkan will likely receive briefings from both Smith and Trump’s legal team advocating their view of which charges should be dropped or maintained in the indictment.
The Supreme Court has left her with the task of parsing Trump’s actions and determining which were official and which were unofficial.
Attorneys told The Epoch Times that with an altered indictment, Mr. Smith would likely have to return to a grand jury to obtain a superseding indictment.
“It’s going to be very difficult to see how Jack Smith, and for that matter, Fani Willis, can cobble together a prosecution,” Heritage Foundation Vice President John Malcolm said.
Fulton County District Attorney Fani Willis also brought a case against Trump in Georgia regarding his activities surrounding the 2020 presidential election.
“This ruling didn’t give anybody any clarity,” criminal defense attorney Keith Johnson told The Epoch Times.
Adding to Smith’s difficulties, another recent Supreme Court decision drastically reduced the scope of a provision of law that Smith had relied on in his own prosecutions of the Jan. 6, 2021 Capitol breach.
That provision, which entails legal penalties for “obstruct[ing] … any official proceeding,” was used to charge Trump and hundreds of other Jan. 6 defendants.
But in Fischer v. United States, the Supreme Court ruled that Smith had played fast and loose with his interpretation of the law, forcing him and the Department of Justice to drop the charge from both Trump and other Jan. 6 defendants.
“The judge is going to have to decide, based on the Fischer case, whether those two counts of the indictment survive, and it’s unclear what she’s going to do,” Malcolm told The Epoch Times.
Determining what remains in the indictment could involve a preelection hearing with testimony and evidence surrounding the events of Jan. 6. It’s unclear how that would look, but observers have speculated about the nature of such a hearing amid a highly charged election season.
Robert Ray, one of Trump’s impeachment attorneys, told The Epoch Times that the hearing would “essentially” be a “mini-trial.”
“I just think that that’s a complete abuse and misuse of the criminal justice process,” he said.
Chutkan has yet to outline how she will proceed, but former federal prosecutor Neama Rahmani speculated to The Epoch Times that she might hold an evidentiary hearing before the election.
Rahmani added that the “ball is really in her court now.”
—Sam Dorman and Joseph Lord
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