The Supreme Court gave a lower court in Washington, D.C., on Monday the monumental task of determining what acts are official and unofficial in the election interference case against former President Donald Trump.
The high court’s 6-3 decision along ideological lines was a massive victory for Trump, as it found that presidents cannot be prosecuted for actions they took in their official capacity unless the Department of Justice can prove the prosecution will not threaten the authority of the executive branch as a whole.
The Supreme Court also found that evidence encompassing a president’s official acts cannot be used in court, which is expected to weaken special counsel Jack Smith’s case severely because he cites several acts that could now be deemed official in the charges he brought against Trump.
The full effects of the complicated and unprecedented nature of the decision remain to be seen.
Judge Tanya Chutkan, who is presiding over Trump’s case at the district court level, must first hold a hearing to begin the tall order of weeding out parts of Trump’s indictment. Legal experts have said to expect the task to evolve over the next few months into a “mini trial,” which would take place before the main trial that would determine Trump’s guilt or innocence.
“The decision today does set up a test, which now needs to be adjudicated in a mini trial, and the chief justice’s opinion actually calls for fact finding by Judge Chutkan,” Norm Eisen, a legal analyst who led the Democrats’ first impeachment against Trump, said on a call with reporters.
Trump will also have options to challenge any orders Chutkan issues on the matter. This could dramatically postpone a trial in the case because appeals processes can take months or longer to play out.
Smith brought the indictment against Trump last year, alleging the former president conspired to defraud the government and violate the rights of voters during the 2020 election. The 45-page document included a wealth of detail to support the charges, and Smith may now need to excise significant portions of it in the wake of the Supreme Court’s decision.
Trump had argued to the courts that all of his charges should be dropped because he was protected from prosecution by presidential immunity, and Chutkan and the appellate court in Washington were quick to deny his claim. In its decision, the Supreme Court rebuked the lower courts for rushing to decide Trump was not immune from prosecution.
The justices said the lower courts must now take the time to “analyze the conduct alleged in the indictment” and determine which of Trump’s actions cannot be used as evidence and which ones he cannot be criminally charged for.
Smith, for instance, alleged that former Deputy Attorney General Jeffrey Rosen privately told Trump his claims about widespread voter fraud were unfounded. Trump communicating with DOJ officials is “readily categorized” as an official act, Chief Justice John Roberts wrote.
The conversations with Rosen will likely need to be carved out of Smith’s indictment now. Other exchanges in the indictment, such as those Trump had with former Vice President Mike Pence or state officials, may be official acts, but that is for the lower courts to decide, the Supreme Court ruled.
The decision will have reach beyond Trump’s indictment in Washington. For example, Fulton County District Attorney Fani Willis brought a separate criminal indictment against Trump and 18 others at the state level in Georgia for election-related activity.
Andrew Fleischman, a Georgia-based defense attorney, observed that Willis’s case may face insurmountable hurdles now. The case is already on pause indefinitely while a higher state court reviews a question about her disqualification, but once it resumes, the judge there will then have to take under consideration the Supreme Court’s decision.
“Here’s the part that probably borks the Georgia case against Trump, at least for the foreseeable future. A judge has to dig through this extremely complicated RICO indictment and decide, with no established test, if Trump was being official,” Fleischman wrote on X.
Other officials from Trump’s administration stand to benefit from the decision. Former DOJ official Jeffrey Clark, for example, was indicted in Georgia for his involvement in an alternate electors plan and is at risk of losing his bar license in Washington.
The group Center for Renewing America responded to the Supreme Court’s decision by calling for Clark’s charges to be dismissed in Georgia and with the District of Columbia Bar.
On top of the immunity decision, the Supreme Court also decided last week that prosecutors and judges had used an Enron-era obstruction charge too broadly. Two of Smith’s four charges against Trump fall under the high court’s decision, meaning Trump could now rely on the decision to fight those charges if they remain in any form once immunity claims are addressed. Smith has argued his obstruction charges against Trump fall under the Supreme Court’s newly narrowed interpretation of the law.
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Smith’s only saving grace in the decision was that the justices unequivocally said the unofficial acts of presidents are not immune from criminal prosecution.
Regardless, the new challenges imposed on the district court mean Trump, the presumptive Republican presidential nominee, will likely not see a trial before the election.
