If Supreme Court hearing on Thursday about former President Donald J. Trump’s claim of executive immunity is any indication of how the court may ultimately rule, the justices will likely help Mr. Trump in two ways.
The justices signaled that their ruling, when issued, could result in some charges being dropped from the federal indictment accusing Mr. Trump of conspiring to subvert the 2020 election.
And because the process of determining which charges to keep and which to drop could take months, it would kill Trump’s chances of standing trial on the charge on which he tried to overturn the election. last election before voters decide whether to do it or not. Pick him again in this one.
Near the end of the argument, however, Justice Amy Coney Barrett suddenly offered a way that prosecutors could work around that time-consuming quagmire. If special prosecutor Jack Smith wants to move faster, she said, and avoid the ordeal of lower courts reviewing his indictment line by line, deciding what should stay and what should go , he can always do the job himself.
That proposal, which Mr. Smith’s team seemed reluctant to accept as a possibility, hinted at the way in which Thursday’s hearing would focus on more than lofty issues of presidential power and constitutional law , but also addresses the more practical elements of how Mr. Trump does it. Trump’s criminal case may proceed after the court’s decision.
However, the justices ruled on the issue of granting the president immunity from criminal prosecution, an outcome that will have a direct and immediate impact on the election interference case, one of the prosecutions. The most important thing that Mr. Trump has to face.
When Mr. Smith filed his indictment in Washington last summer, it placed Mr. Trump at the center of a web of intertwined criminal conspiracies, all aimed at overturning the election results. in several key conflict states.
The allegations detail dozens of individual steps Mr. Trump took to achieve his goals. They describe, among other things, how he sought to enlist the Justice Department to validate his claims that the election results were marred by fraud. And they presented evidence of him pressuring state lawmakers to compile fake lists of electors saying he won states he actually lost.
Executive immunity was the first defense Mr. Trump offered against these charges, and when his lawyers initially made a claim six months agoThe approach they took was bold.
Flip the script Regarding Mr. Smith’s indictment, lawyers argued that Mr. Trump was completely protected from prosecution because he acted in his protected role as president to protect his “integrity.” of the election and not, as prosecutors claim, in his private role. as a candidate seeking to weaken it.
Although the Supreme Court does not seem to agree entirely with these sweeping statements, The court’s conservative justices seemed concerned with the idea that presidents should enjoy some form of criminal immunity. Time and time again, they have pivoted to the notion that presidents may be shielded from prosecution for official actions related to their jobs, but may still face charges. about private behavior.
If the court rules applying that standard, some of the specific allegations made by Mr. Smith may have to be dismissed. Although the case still exists and goes to trial, prosecutors may not be able to tell the jury every chapter of the lengthy story they have crafted.
A glimpse into the process of determining charges by separating official acts from private acts emerged Thursday in some back-and-forth discussions between the two judges and D. John Sauer, the lawyer who argued on behalf of Mr. Trump.
For example, speaking to Justice Elena Kagan, Mr. Sauer said that Mr. Trump was exercising his official presidential role when he sought to appoint a loyal Justice Department official, Jeffrey Clark, as acting attorney general in his waning days. office. Mr. Sauer described that move as the kind of personnel decision that falls within the president’s authority, although prosecutors say Mr. Trump sought to promote Mr. Clark for a very different reason: because he had promised will bring allegations of election fraud. .
In a similar vein, Mr. Sauer argued that Mr. Trump was simply carrying out his presidential duties when he asked Rusty BowersArizona House speaker, will call the State Legislature into session later in 2020 to hold a hearing on election fraud.
“We take that as an official position,” Mr. Sauer said, adding that the request to Mr. Bowers was made “to protect the integrity of the federal election.”
But if Mr. Sauer sought to define some of the actions in Mr. Trump’s indictment as formal — and thus off-limits to the prosecutor’s case — he acknowledged that others appeared are private, suggesting they will remain fair game for Mr. Smith’s group.
When Judge Barrett noted that Mr. Trump had turned to “a private attorney” — an apparent reference to Rudolph W. Giuliani — “to spearhead his challenges to the election results,” Mr. Sauer acknowledged admitted that he had not acted in his capacity as president. .
“To me that sounds personal,” Mr. Sauer said.
Judge Barrett received a similar reaction when she pressed Mr. Sauer about Mr. Trump’s involvement in the now-famous scheme to create fake slates of electors. When Judge Barrett reminded Mr. Sauer that the indictment alleges that Mr. Trump was joined in the conspiracy by his personal lawyers and an outside political consultant, Mr. Sauer said, “That is private. ”
But these admissions could be seen as a tactical retreat intended to secure a larger strategic victory. Indeed, at times it seems as if Mr. Trump’s legal team is abandoning its maximalist stance — that immunity extends to all indictments — to invite the court to explore the details. more detailed distinctions between official and private acts.
If the justices do that, they could order a federal appeals court or a trial court in Washington to take over the work. And since the task will most likely require lengthy arguments over dozens of charges — and the possibility of appeals against those decisions — it could easily take several months and push the trial to 2025 .
While the conservative justices in particular seemed in no rush to send the case to trial, Judge Barrett at least acknowledged the timing strains. At one point, she told Michael R. Dreeben, who argued on behalf of Mr. Smith, “the special counsel expressed some concerns about the pace and wanted to move forward.”
That’s when she considered her surprising plan to speed up the case.
Her suggestion?
In essence, the special prosecutor can edit his own indictment and “proceed on private conduct and abandon official conduct.”
