Matt Gluck, Hyemin Han, Quinta Jurecic, Natalie K. Orpett, Roger Parloff, Alan Z. Rozenshtein, “For the Ages”: The Supreme Court Hears the Presidential Immunity Defense, April 26, 2024.
Introductory remarks:
On April 25, the U.S. Supreme Court heard oral arguments in Trump v. United States, the case arising from the Special Counsel’s Office’s decision to charge former president Donald Trump for his effort to overturn the results of the 2020 election. Trump has argued that he is absolutely immune from the charges brought by the Justice Department because, he asserts, they target his official presidential conduct. The U.S. District Court for the District of Columbia rejected Trump’s argument that he enjoys absolute criminal immunity for his official acts, and the U.S. Court of Appeals for the D.C. Circuit affirmed that ruling.
Despite the nearly three hours of oral argument, only a portion of that time was spent on the particulars of the Jan. 6 case or its procedural posture. That’s because the justices were, as Justice Gorsuch put it, writing a ruling “for the ages.” The Court grappled with the distinction between private acts and official acts—everyone seemed to agree that private acts could be prosecuted—and then wrestled with which subset of official acts, if any, could be prosecuted. Several justices further focused on which criminal statutes can apply to the president without conflicting with his Article II powers. There did not appear to be much consensus on these questions, and the justices seem poised to issue a splintered decision rejecting Trump’s maximalist arguments, while establishing at least some presidential criminal immunity for at least some types of official acts.
The Court could send the case down several different paths to resolve and eventually move past the immunity issue, but none is likely to lead to a quick resumption of the trial in Judge Tanya Chutkan’s courtroom.
Then we have analysis of remarks by the advocates and by each justice.
Concluding remarks:
The justices seem certain to send the case back to either the court of appeals or, more likely, the district court for further proceedings. Precisely what those proceedings will look like, what they will decide, and whether the findings reached therein would, themselves, be subject to a second interlocutory appeal, all remain very live questions.
Even Sauer acknowledged that certain accusations of the indictment concerned purely private acts, and that a former president could at least theoretically be charged with crimes based solely upon those. But much of the indictment also alleges that Trump used the trappings of his office for personal gain. And the justices appeared deeply split over whether these sorts of acts were protected by some sort of immunity and, if so, whether it was absolute or qualified.
Likewise unclear—and decisive in terms of whether this case can yet conceivably be tried before the election—is what sort of procedures the Court will require the lower court to engage in to resolve whatever questions the Court wants resolved. If the case returns to Judge Chutkan, one possibility is that she could proceed with the current indictment, as is, and simply instruct the jurors that certain accusations can only be used as evidence of Trump’s intent—not as a basis for finding him criminally culpable. Another is that she would have to “expunge” certain accusations and that even evidence of that conduct would be precluded from being introduced at trial. Still another is that Judge Chutkan would need to hold some sort of evidentiary hearing. Finally, in any of these scenarios, the crowning question will be whether Trump will be entitled to make an interlocutory appeal on whatever findings Judge Chutkan makes—ensuring that no trial could take place for many months to come.
It looks increasingly unlikely that this case will be tried before the election. And if Trump wins that election, the case will likely never be tried at all.
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