The Supreme Court has gifted Donald Trump with an expansive redefinition of unquestionable presidential powers — one that weakens any case against the former president for trying to overturn the 2020 election and threatens severe delays in the proceedings.
Most of the toughest decisions will land in the lap of Judge Tanya Chutkan, the U.S. District Court judge in Washington, D.C., who is presiding over the federal trial on special counsel Jack Smith’s case stemming from Trump’s actions in the run-up to the Jan. 6, 2021, election certification.
She now has to determine at least three key questions about presidential authority — and every one of them could be appealed to the Supreme Court, almost certainly delaying trial until well after the election.
As a result, Loyola Marymount University law professor Jessica A. Levinson expects federal prosecutors to severely trim back their indictment against Trump. And the judge will hold a massive evidentiary hearing in the coming months — something akin to a mini-trial to answer the Supreme Court’s open questions.
“Chutkan has a lot of work,” she said. “And that’s going to take time. But that means a semi-public hearing of some big issues.”
Legal scholars expect the laundry list of open questions and the timing of the opinion (on the final day of the Supreme Court’s term) all but guarantee the case won’t be tried before the election.
“That’s a guarantee … the voting public will not know the facts of this case — which are critical to evaluating this candidate. If he were convicted of taking part in the insurrection, would he be the nominee again? Maybe not. But because they’ve gummed up the process and delayed this to the very last day of the term, it’s almost like the conservative judges are putting their hand on the scale,” Pace University law professor Randolph M. McLaughlin said.
Chutkan’s first order of business will be to determine whether Trump was acting in his capacity as president during his furious tirade to loyal MAGA followers preparing to storm the U.S. Capitol during the Jan. 6 rally or in an unofficial capacity. Likewise, Chutkan will have to determine whether Trump was engaging in official duties when he tried to pressure state officials to flip the results of the 2020 election.
She will also have to engage in a philosophical exercise related to Trump’s attempts to coerce his vice president into corrupting the 2020 vote certification. The Supreme Court, fixated on a legal definition that Mike Pence was technically acting as Senate president during that ceremony, has instructed Chutkan to first determine whether the mere fact that Smith is prosecuting this “would pose any dangers of intrusion on the authority and functions of the Executive Branch.”
However, the Supreme Court also put prosecutors in something of a paradox. In making any “official” presidential act completely untouchable, the conservative majority made it imperative for the special counsel to differentiate between official and unofficial acts. However, the justices also made it harder for prosecutors to even do that, barring them from examining any evidence that stems from the president’s official duties.
“Testimony or private records of the president or his advisers probing such conduct may not be admitted as evidence at trial,” the Supreme Court ruled on Monday.
That has some legal scholars wondering: How can prosecutors prove Trump was acting in an unofficial capacity when he pressured Pence if they can’t rely on the first-hand accounts of people at the White House at the time?
“It’s not just about immunity for official acts. It’s going to be more difficult to prove liability for private acts based on the bar of bringing in evidence of the official acts,” Levinson said. “It is truly ‘hands off’ those in every way. … This is not just throwing a protective shield … it’s also harder to prove the thing you said shouldn’t be protected.”
On Monday, the Supreme Court ruled that Trump’s communications with the Justice Department could not remain part of the case, as they were a clear part of his official constitutional duties as president. But the high court left the door open for Smith’s team to make the case that some of Trump’s interactions with Pence or with the myriad state and local officials he and his allies tried to pressure were not part of his official duties.
Similar conduct is at issue in Georgia — where a sprawling racketeering case against more than a dozen Trump allies and acolytes contains a similar patchwork quilt of allegations. Two former government officials — Mark Meadows and Jeffrey Clark — are part of that prosecution and may be able to raise immunity-related defenses. In addition, the Georgia court might have to sort out which of Trump’s actions were official and which were not.
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Jose Pagliery is a reporter at NOTUS. Byron Tau, a reporter at NOTUS, contributed to this report.