In the coming weeks or months, a federal district court will have the opportunity to apply the Supreme Court’s recent ruling on the scope of a former president’s immunity from criminal liability, reported Just Security. The decision has been accurately described, by Akhil Amar and others, as one of the worst in the Court’s history because of the leeway it gives a president to commit crimes and its expansion of exclusive executive authority. However, the Court’s ruling shields only some official presidential conduct from criminal prosecution. Unofficial acts are not covered by immunity, and not all official acts are absolutely immune. A key question in the January 6 case becomes which of the specific acts alleged in the indictment are immune under the Court’s new test and which aren’t. The Court gave important “guidance” (its term), but largely left that question for the trial court to answer in the first instance. The trial court’s process for answering that question will involve an evidentiary inquiry, and perhaps hearings, to assess alleged facts relevant to the legal test.
On our view, the Court’s decision leaves the core of the
case against Trump intact. A fair application of the Court’s new immunity test
to the indictment’s allegations yields a narrowed but still plainly viable
prosecution. As we write, the trial court and the parties are preparing to
grapple with this issue. On Saturday, August 3, Judge Tanya Chutkan—the trial
judge presiding over the case—issued an order requesting the parties to propose
a schedule for the remaining pretrial proceedings. The order also scheduled a
status conference for August 16, at which the court may decide the path
forward. The application of the immunity test will likely be a central part of
that process.
In this essay, we discuss how the trial court should
approach applying the Supreme Court’s ruling. We believe that as soon as
possible following the status conference, Judge Chutkan should schedule an
evidentiary hearing—a “mini-trial,” in which documents and witnesses are
presented—to determine the scope of the immunity in this case. Our examination
of the new immunity rule and the specific allegations against Trump indicate
that Smith’s case remains strong and should survive that inquiry with key
elements remaining unscathed.
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