'Smith’s case remains strong' after immunity ruling, 'mini-trial' should start soon

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.

To read more CLICK HERE