What’s Next for Trump’s DC Election-Related Case After Immunity Ruling?

U.S. Court House E. Barrett Prettyman in Washington on Aug. 2, 2023. Madalina Vasiliu/The Epoch Times

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, attorneys indicated to The Epoch Times.

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.

While the court identified what some of those parameters looked like, future decisions by the lower court and potentially the Supreme Court will continue to clarify the scope of presidential immunity.

U.S. District Judge Tanya Chutkan could use various legal avenues to alter the case before a trial that was once scheduled for last March but is looking increasingly unlikely to take place before the 2025 inauguration.

If he is elected in November, former President Trump is expected to order the prosecution dismissed, raising the prospect that the case will never reach a jury. However, observers have speculated that Judge Chutkan could bring certain facts to light that are potentially damaging to the former president before the 2024 election.

Former President Donald Trump speaks during a Turning Point USA Believers' Summit conference at the Palm Beach Convention Center in West Palm Beach, Fla., on July 26, 2024. Joe Raedle/Getty Images

Weakened Indictment

The Supreme Court set a bleak course for special counsel Jack Smith’s indictment of the former president by holding that many of the activities underlying his allegations were part of a president’s constitutional authority.

Chief Justice John Roberts’s majority opinion grouped the allegations into three categories: those surrounding President Trump’s work with the Department of Justice (DOJ); those involving his communication with state electors and his communications on the day of Jan. 6, 2021; and his urging Vice President Mike Pence to not certify the election results in the Senate.

Former President Trump received absolute immunity from prosecution of the first category. For the second, the court remanded the issue to the district court to determine whether his actions were official. His communications with Mr. Pence are “presumptively immune,” but the DOJ can rebut that presumption in court.

In remanding that issue, 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.”

Quoting its 2018 decision in Trump v. Hawaii, a dispute over the former president’s travel ban, the court also emphasized that “the President possesses ‘extraordinary power to speak to his fellow citizens on their behalf.’” It also noted that “most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.”

Judge Chutkan will likely receive briefings from both the special counsel and former President 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 former President 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 brought a case against former President Trump in Georgia regarding his activities surrounding the 2020 presidential election.

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. Quoting its opinion in Trump v. Mazars, which involved Congress’s attempt to subpoena former President Trump’s tax returns, the court noted that no “clear line” demarcates official versus unofficial acts.

“This ruling didn’t give anybody any clarity,” criminal defense attorney Keith Johnson told The Epoch Times.

U.S. District Judge Tanya Chutkan. Administrative Office of the U.S. Courts via AP

Jan. 6 Charges

Another Supreme Court decision, Fischer v. United States, has cast doubt on two of the counts in Mr. Smith’s indictment. Both former President Trump and Jan. 6 defendants have been charged under the Sarbanes-Oxley Act of 2002, which contains a debated provision on obstructing official proceedings.

In Fischer, a group of Jan. 6 defendants challenged the DOJ’s attempt to apply that law to their activities at the U.S. Capitol. The relevant provisions of the law targeted “whoever corruptly” “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or ... otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”

The court held that in order to prove someone had “otherwise [obstructed]” an official proceeding, prosecutors would need to prove that person engaged in conduct outlined in the preceding portion of the sentence. More specifically, the court held that “the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so.” The DOJ has already started dropping obstruction charges against Jan. 6 defendants.

“This ruling also is going to apply to Donald Trump,” Mr. Malcolm told The Epoch Times.

“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.”

Determining what remains in the indictment could involve a preelection hearing with testimony and evidence surrounding the events of Jan. 6, 2021. 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 former President 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.

Judge 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. Mr. Rahmani said that the “ball is really in her court now.”

Jury

An evidentiary hearing could inform the court’s decisions but almost certainly won’t resolve questions about what remains in the indictment. Judge Chutkan’s rulings are subject to an appeal, which the Trump legal team would likely pursue.

Assuming the case reaches trial, that hearing could inform the scope of information that jurors receive before issuing a verdict. The Supreme Court’s majority rejected the idea that juries could consider evidence concerning the former president’s official acts.

“That proposal threatens to eviscerate the immunity we have recognized,” Chief Justice Roberts wrote. “It would permit a prosecutor to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge.”

Mr. Johnson told The Epoch Times that the case “is clearly going to come down to jury selection.”

“Those who will see Donald Trump as a threat to American democracy ... are going to convict him, regardless of what the Supreme Court says, regardless of what an official act is,” he said.

Future Appeals and Delays

However the district court rules on the scope of former President Trump’s immunity, legal experts indicated that there is a good chance the case will be remanded to the DC appeals court or the U.S. Supreme Court.

“This is months, if not years, from heading to trial, and I would note, of course, that if Donald Trump wins the election, he is going to order this case to be dismissed, and he will fire Jack Smith,” Mr. Malcolm told The Epoch Times.

Mr. Johnson said, “[Judge Chutkan will] try to rule pretty quickly, but I think that ruling is going to be caught up in some kind of appeal.”

The prospect for appeals seemed greater, given the nature of the case.

In her concurring opinion, Justice Amy Coney Barrett wrote, “As for interlocutory review, our precedent recognizes that resolving certain legal issues before trial is necessary to safeguard important constitutional interests—here, Executive Branch independence on matters that Article II assigns to the President’s discretion.”

Florida Judge Aileen Cannon ruled that Mr. Smith’s appointment was unconstitutional, complicating the appeals process. That ruling conflicted with a D.C. circuit ruling in 2019 that upheld Robert Mueller’s appointment.

Former President Trump’s attorneys could use that opinion to dispute Mr. Smith’s legitimacy in the Washington case, potentially teeing up a Supreme Court ruling if both Judge Chutkan and the U.S. Court of Appeals for the D.C. Circuit reject it.

Justice Clarence Thomas, who was quoted in Judge Cannon’s opinion, was sympathetic to this argument in his concurring opinion on the immunity decision. None of the other justices joined that opinion, but Justice Brett Kavanaugh expressed concern about the special counsel’s power during oral argument on April 25.