The future of Special Counsel Jack Smith’s prosecution of former president Donald Trump for the alleged 2020 election conspiracy depends on the Supreme Court’s decision on presidential immunity in three ways. First is the scope of Trump’s criminally chargeable conduct. The Court’s ruling on this point will determine which conduct alleged in the indictment is not shielded by immunity—allowing that conduct to be tried. Second is what are the post-ruling procedures to be followed. The Court’s instructions here will determine the course of the judicial proceedings on remand, and the possibility of a second round of appeals. Third is the issue of timing. When and how the Court decides may be the most important factor of all and will determine whether the case proceeds to trial before Election Day.
Trump’s attorney John Sauer conceded at oral argument that even under the maximalist position that Trump has asked the Supreme Court to adopt—that he is shielded from criminal prosecution for all acts within the “outer perimeter” of his official responsibilities as president—much of the conduct alleged in the indictment would not be immune because it is not private. And although Sauer disputed whether those concededly unofficial acts would form a sufficient basis for the charges, the Government has argued persuasively that they are. The justices appeared unpersuaded by Sauer’s position on this point. As a result, even if the Court adopted the most generous possible rule for Trump, the case would continue in the district court for further proceedings and most likely for trial, eventually, unless some external event –namely, a re-elected President Trump–terminates the case.
The key question, then, is not whether the case will move forward after the Supreme Court’s decision but when and how. With those parameters, we map the possible outcomes from the Court and the procedural pathways on remand that emerge from those outcomes.
Scenario 1: Immunity for Core Article II Powers Only
The Supreme Court might rule that only “core” powers of the presidency are immune from prosecution, and that none of those are at issue in this case.
The Special Counsel, Trump’s counsel, and seemingly all the justices agreed that a former president is immune from criminal prosecution for at least some set of core presidential functions grounded in Article II of the Constitution. For example, a former president could not be prosecuted for vetoing legislation or recognizing an ambassador from a disfavored foreign government. Some challenging questions might arise with respect to such cases—for example, whether the constitutional prohibition on such prosecutions is properly categorized as an “immunity” and thus entitled to pre-trial appellate review—but that detail should not significantly affect Trump’s case. At most a few justices suggested that any of the conduct alleged in the indictment (e.g., replacing the Acting Attorney General) might fall into that core of Article II functions.
If the Court adopts the rule that only core Article II functions are shielded from prosecution, then the procedural pathway on remand is straightforward. The Court would announce that rule and hold that none of the conduct alleged in the indictment falls into the protected category (or perhaps precluding only the allegation of Trump’s actions to replace the Acting Attorney General, which in our view are unnecessary to the case). The Court would remand the case to the district court with a green light to proceed to trial. Given the straightforward nature of this ruling, the Court could potentially issue such a decision as early as May. That could lead to trial starting as soon as late summer or early fall, and concluding before the election.
Scenario 2: A Broader Immunity Rule that the Court Itself Applies (At Least in Part)
The Supreme Court may rule that in general a larger set of official conduct is immune from prosecution, and state explicitly which conduct in the indictment survives that test.
Such a ruling would likely result in most if not all of the conduct alleged in the indictment being considered private or likewise subject to prosecution. In this scenario, we assume the Court applies that rule itself (in whole or in part) to the conduct alleged in the indictment. In the scenario below (Scenario 3), we discuss the option of the Court simply announcing the rule and remanding the case to the district court to apply it in the first instance.
A key question is what rule the Court would adopt to define official acts subject to immunity. We begin with the framework that dominated the discussion at oral argument: the civil rule in the 1982 Supreme Court case of Nixon v. Fitzgerald, which held that “the President’s absolute immunity extends to all acts within the ‘outer perimeter’ of his duties of office.”
Applying the Fitzgerald rule is simplified by Sauer’s concessions at oral argument that the following conduct is not immune under that test:
- “[Trump] turned to a private attorney, he was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results.”
- “[Trump] conspired with another private attorney who caused the filing in court of a verification signed by Petitioner that contained false allegations to support a challenge.”
- “Three private actors, two attorneys, including those mentioned above, and a political consultant helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding, and [Trump] and a co-conspirator attorney directed that effort.”
- “[Trump] signed a verification affirming false election fraud allegations made on his behalf and a lawsuit filed in his name against the Georgia government — governor.”
What’s more, both Sauer and Michael Dreeben, counsel for the Government, largely endorsed the D.C. Circuit’s application of the Fitzgerald test in Blassingame v. Trump, a civil case in which Capitol Police officers and members of Congress sued Trump alleging that his conduct precipitated the violence on January 6. The Blassingame court further articulated the distinction between official and unofficial conduct as the difference between a president acting as “office-holder” (immune) versus as “office-seeker” (not immune). The parties agree that the above alleged conduct is not shielded by immunity under Blassingame’s application of the Fitzgerald test (or any other version of the test for that matter). Accordingly, the Court can adopt those concessions in its decision.
The remaining question is whether the Court can apply that test itself, prior to a remand. That in turn depends on whether the Fitzgerald/Blassingame test can be applied to the face of the indictment or requires further evidentiary development and fact-finding by the trial court. The D.C. Circuit’s decision in Blassingame remanded that case for an evidentiary hearing and fact-finding on the ground that Trump must be afforded the “opportunity to dispute the plaintiffs’ allegations bearing on the immunity question or to introduce his own facts pertaining to the issue.” But that was a civil case, and the Fitzgerald opinion itself notes that criminal cases are different. Many have assumed that, if the Supreme Court adopts the Fitzgerald/Blassingame framework in Special Counsel Smith’s criminal case, it must similarly remand the case for such pre-trial proceedings. A careful examination of Blassingame, however, indicates that this conclusion is premature at least with respect to some of the allegations in the indictment.
In Blassingame, the conduct forming the basis of liability was public speech on matters of public concern. The question was whether that speech was uttered in Trump’s role as office-holder or office-seeker. The same speech given at the State of the Union might be official but given at a party’s nominating convention would be unofficial. Some facts alleged in the Blassingame complaints bore on that question. For example, the complaints alleged the “Save America” rally on the Ellipse on the morning of January 6 was organized by campaign staff. But, the D.C. Circuit explained, if the rally had instead been organized by White House staff that fact might indicate that Trump’s speech at the rally was given in his role as president (office holder) rather than as candidate (office seeker). As a result, the resolution of a potential factual dispute could ultimately affect the legal conclusion about the official versus unofficial status of that particular conduct. For that reason, the court concluded that Trump must have the opportunity on remand to develop evidence and move for summary judgment on any such factual disputes.
The premise underlying that conclusion is that there is some set of facts that could potentially impact the legal status of the alleged conduct as official or unofficial. If no set of facts could render some alleged conduct to be official, then there is no need for evidentiary proceedings to resolve factual disputes because their resolution could not affect the legal conclusion about the official status of that conduct. We believe that there is ample basis for the Court to rule that no set of facts could render most of the alleged conduct in the indictment to be official.To see why, consider three central allegations in the indictment:
- First, in response to a question by Justice Kagan, Sauer asserted that the following alleged conduct was official: “[Trump] called the chairwoman of the Republican National Committee, asked her to gather electors and targeted states falsely represented to her that such electors’ votes would be used only if ongoing litigation in one of the states changed the results in the defendant’s favor.” The basis for Sauer’s contention was, in his words, that “the organization of alternate slates of electors is based on, for example, the historical example of President Grant as something that was done pursuant to and ancillary and preparatory to the core recommendation clause power.”
Sauer’s response was on exceptionally weak ground, and the Court can reject his argument on this point without the need for any development of the factual record. Sauer’s answer here was inconsistent with his other concessions, and is exceedingly difficult to maintain given the specifically alleged facts of coordinating with a major political party in an office-seeking manner. The historical example of President Grant is also unavailing. Grant did not “organiz[e] alternate slates of electors” and the actions he took during the 1876 election were not taken pursuant to, or in any way related to, the president’s Article II power to “from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient.” President Grant sent federal troops to several southern states pursuant to an express grant of legal authority for that unquestionably official military action from Congress in the Enforcement Act of 1871. There is no such statutory authority supporting Trump’s efforts to organize alternate slates of electors with his own political party, and Sauer could point to none. Because Trump’s only argument supporting the conclusion that calling the chairwoman of the RNC to organize alternate slates of electors was official conduct fails as a matter of law, the Court can conclude that this conduct is not official without the need for any factual determinations on remand.
- Second, Sauer appeared to indicate that communicating with members of Congress to persuade them to object to the counting of electoral votes pursuant to the procedures of the Electoral Count Act of 1887 was official conduct pursuant to the president’s “authority under the Recommendations Clause to recommend to Congress, members of Congress, the measures he thinks necessary and expedient.” The Recommendations Clause’s reference to “measures” that Congress might take upon the president’s recommendation includes legislation and treaties, but does not include the electoral count. As a result, as a matter of law the president has no official responsibilities related to the electoral count involving “recommend[ing]” that members of Congress object to electoral votes cast for the president’s political opponent. The Court can therefore conclude that this alleged conduct in the indictment is not official without the need for any factual determinations and thus prior to a remand.
- Finally, Dreeben did not take a position regarding whether “pressur[ing]” Vice President Pence to take unilateral action with respect to the electoral count was official. The Vice President has no role in the electoral count beyond “open[ing] all the certificates” pursuant to the Twelfth Amendment and the purely ministerial responsibilities specified by the applicable statute (which in 2021 was the Electoral Count Act of 1887). A president attempting to persuade a vice president to reject electoral votes or delay the electoral count unilaterally is thus akin to attempting to persuade the vice president to veto a decision of the Supreme Court (or remove the Speaker of the House, or take a similarly unlawful action under legalistic cover). It falls so far outside the vice president’s legitimate constitutional authority that it cannot constitute official conduct on his part. In any event, the alleged conduct involves, at most, the vice president’s official acts in his role as President of the Senate, not the president’s official acts. As above, the conclusion here is purely legal and thus does not require the resolution of any factual disputes. Accordingly, the Court can conclude prior to remand that this specifically alleged conduct was also not official and thus requires no further evidentiary proceedings.
If the Court adopts this approach, then it is possible that the only conduct alleged in the indictment that remains to be categorized are allegations related to the Department of Justice. Dreeben agreed at oral argument that “that the Department of Justice allegations were a use of the president’s official power.” The Court could construe that statement as a concession that those allegations are official and thus shielded by immunity under the Fitzgerald/Blassingame framework, with the caveat that those allegations can still be used as evidence to demonstrate Trump’s knowledge and mental for other criminal conduct. Alternatively, if it is uncertain about Dreeben’s concession, the Court could leave that question open to be addressed on remand.
The Special Counsel has a card to play at that point: DOJ could immediately and unilaterally stipulate that those factual allegations will not be charged as criminal conduct and propose appropriate jury instructions to that effect, again with the caveat that they can be used as evidence related to other criminal conduct. Although Dreeben emphasized that the Department of Justice allegations are grave, explaining that “an incumbent president to then use his presidential powers to try to enhance the likelihood that [his scheme] succeeds makes the crime in our view worse,” we and many other analysts believe that those allegations are not essential to the indictment. The DOJ stipulation could therefore enable the case to proceed to trial without any further evidentiary proceedings to resolve outstanding immunity issues, because none would remain.
Scenario 3: The Court Adopts an Immunity Rule and Orders the District Court to Apply it on Remand
The Supreme Court may set forth a rule like the Fitzgerald/Blassingame framework but decline to apply the rule to the alleged conduct in the indictment. That scenario makes some additional pretrial proceedings at the district court almost inevitable. (Though we note one significant caveat with respect to whether the matter could be held for and decided by a jury at trial rather than the judge before trial, which might turn on the nature of the rule and what the Court says about it.)
The form of those pretrial proceedings, the clarity of the new rule, and the care with which the district court applies the rule are important variables here. The latter may avoid the proceedings being stayed on an appeal from her ruling.
The Court might specify exactly what those additional pretrial proceedings must be, or it could leave the district court with substantial discretion in how to shape them. If the Supreme Court takes the latter course, then the district court faces a decision point that could profoundly impact the timing of a trial.
On the one hand, the district court could apply the law to the face of the indictment per the analysis we described in Scenario 2. That is, if the Supreme Court does not perform that analysis, Judge Tanya Chutkan can. The district court could also order expedited briefing on the application of the new immunity test to inform that analysis.
On the other hand, the district court could proceed with a robust evidentiary proceeding. The time required for this approach would most likely delay the beginning of the trial until past Election Day and likely into 2025. The advisability of this approach thus depends on the threshold question whether the prospect of a trial is, by that point, likely to be postponed until after the election. The evidentiary proceeding itself could serve as a “mini-trial” that includes the formal presentation of evidence, the examination and cross-examination of witnesses–including perhaps Trump himself–and detailed argumentation about the merits of the parties’ legal and factual contentions. That “mini-trial” would not itself yield a jury verdict on Trump’s criminal culpability, but it could serve the public interest by the prosecution presenting its case with an opportunity for the defense to rebut it.
Another distinct possibility could bypass these pretrial proceedings entirely: leaving the fact-finding question to the jury. In contrast to civil cases like Fitzgerald and Blassingame, there is no summary judgment procedure for pretrial fact-finding in a criminal case. If a jury, not a judge, must find all facts relevant to criminal liability including those pertaining to immunity, then the district court could proceed directly to trial.
Looming over these procedural pathways under Scenario 3 is the possibility that a district court pretrial decision on the application of the Supreme Court’s new immunity rule could be subject to yet another round of interlocutory appeal. If the district court rules that Trump is not immune for some alleged criminal conduct–either as a matter of law on the face of the indictment or after an evidentiary proceeding–then Trump will surely attempt to further delay the beginning of trial by immediately appealing.
The Supreme Court could avoid that outcome by swiftly and summarily rejecting Trump’s successive interlocutory appeal, or by pretermitting that issue by applying its new immunity rule itself in its initial decision as discussed in Scenario 2. Alternatively, it could permit that appeal without it (or the D.C. Circuit) staying the district court’s proceedings in recognition of the meritlessness of Trump’s successive appeal of the district court’s faithful application of the Court’s test for immunity.
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Beyond the resolution of the immunity issue, other factors could affect the timing of the trial and the necessity of particular pre-trial procedures. First, the Special Counsel could streamline its theory of the case to substantially reduce the length of the trial. This “slim to win” approach could focus solely on the core of the scheme: the alternate electors and the pressure on Pence to act unilaterally on January 6. Doing so could eliminate numerous witnesses on Trump’s machinations regarding the Department of Justice, Congress, state legislatures, and state election officials. Second, Trump may seek to stay the trial on the ground that the trial is too close to the election. Although it is unclear what doctrinal basis Trump would assert for that argument, it is possible that the Court would grant such a stay even though it would constitute a clear intervention into the political process.
Be that as it may, the upshot of our analysis in this essay is that, contrary to much speculation since the Supreme Court’s oral arguments in the case, the viability of a trial beginning in 2024 remains an open question. The resolution of that question depends on the details of the Court’s decision, the nature of the pretrial fact-finding proceedings, if any, that its decision requires—and when they decide. For the sake of the administration of justice, we hope and urge that it be soon.
IMAGE: The U.S. Supreme Court (via Getty Images)
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