Judges from around the country say Trump can be held accountable for January 6. What will the Supreme Court say?

Whether the legal system can hold Donald Trump accountable for his attempts to overturn the 2020 election has been an evolving conversation among courts across the country. On Thursday, the Supreme Court will enter the chat.

The high court is by no means bound by how other federal courts have interpreted the legitimacy of Trump’s post-election conduct.

But if the justices decide that Trump’s attempts to reverse his loss were in the realm of official presidential conduct, they’ll be rebuffing the assessments of a broad swath of lower court judges – appointed by Democratic and Republican presidents alike – who have concluded otherwise.

The justices will be hearing arguments on Trump’s claims that the protections of the presidency immunize his alleged election subversion conduct. The case will decide whether the federal criminal case brought by special counsel Jack Smith against Trump for his 2020 election schemes can go forward.

At the heart of the issue is whether Trump was acting within the “outer perimeters” of his presidential duties in a campaign that allegedly included urging state officials to reverse his election loss, pressuring his vice president to disrupt Congress’ certification of the electoral results and falsifying presidential electors to rival those from the states that Joe Biden won.

Courts in Washington, DC, Georgia and California have considered from a variety of angles the potential legal consequences that Trump and some allies could face for their 2020 gambits. They’ve approached it in disputes over the congressional probe into the Trump actions preceding and during the attack on Capitol, and in the context of civil January 6, 2021-related litigation against Trump and his allies.

In the latter circumstance, a federal judge ruled that Trump’s alleged conduct – including the fiery January 6 speech he gave before the Capitol attack – “do not relate to his duties of faithfully executing the laws, conducting foreign affairs, commanding the armed forces, or managing the Executive Branch.”

“They entirely concern his efforts to remain in office for a second term,” US District Judge Amit Mehta, an Obama appointee, wrote in 2022, allowing several civil lawsuits against Trump to advance towards trial. “These are unofficial acts, so the separation-of-powers concerns that justify the President’s broad immunity are not present here.”

In an appeal of Mehta’s ruling, Trump argued that in his pre-riot remarks near the White House, he was speaking on a matter of public concern – his supposed worries about fraud in the election – and thus the conduct was part of his official presidential duties. That entitles him to an absolute immunity from the civil suits, he claimed, regardless of whether he was also acting in the interests of his reelection. The appeals court left the door open for Trump to make narrower, more fact-based arguments for immunity, but it rejected his sweeping logic for why his campaign-aimed activity should be shielded.

“When a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act,” Obama-appointed Circuit Judge Sri Srinivasan said in a US DC Circuit Court of Appeals opinion last year. “The Office of the Presidency as an institution is agnostic about who will occupy it next. And campaigning to gain that office is not an official act of the office.”

Distinguishing electioneering from the duties of a president

A key claim Trump has made in the criminal immunity dispute before the Supreme Court is that he is being prosecuted for alleged acts that were part of his duties as president. That claim has been roundly rejected by judges who have addressed his and his aides’ post-election conduct in other circumstances.

In the Georgia election subversion prosecution brought by the Fulton County district attorney, Trump White House chief of staff Mark Meadows tried to move the charges against him to federal courts, for the purposes of arguing that he was entitled to federal immunity in the case.

That claim was rejected both by a US district judge and by a federal appeals court.

The 11th Circuit Court of Appeals, led by a very conservative appointee of President George W. Bush, dismantled Meadows’ assertions that his involvement in Trump’s plots were part of a legitimate White House effort to supervise state election administration.

“We are aware of no authority suggesting that the Take Care Clause empowers federal executive interference with state election procedures based solely on the federal executive’s own initiative, and not in relation to another branch’s constitutionally authorized act,” the court’s opinion, authored by Circuit Chief Judge William Pryor, said.

The 11th Circuit focused particularly on Trump’s January 2021 call with Georgia Secretary of State Brad Raffensperger, which also girds Fulton County’s charges against Meadows, and noted that “the attorneys involved were employed by either Trump personally or by the Trump campaign – no attorneys from the Office of White House Counsel or the Department of Justice were present.”

The 11th Circuit cited Mehta’s ruling in the private January 6 litigation to conclude, “Campaigning for a specific candidate is not official conduct because the office of the President is disinterested in who holds it.”

Criminalizing presidential conduct?

Trump’s briefs at the Supreme Court argue that, without absolute immunity for former presidents, several presidents who preceded him could have been prosecuted for official acts that are opposed by their political rivals.

But even before Smith filed his indictment, a federal judge in California described Trump’s conduct as likely criminal in a case concerning the House January 6 Committee’s pursuit of emails by John Eastman, an architect of Trump’s election subversion schemes.

US District Judge David O. Carter, an appointee of Bill Clinton, ruled in March 2022 that Eastman and Trump “more likely than not” committed obstruction of an official proceeding and engaged conspiracy to defraud the United States – both crimes Smith eventually charged against the former president.

“Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting ‘corruptly,’” Carter wrote, while concluding that certain emails the House sought fit in the crime-fraud exemption to the attorney-client privilege.

Though Carter was only deciding what emails from the attorney could be disclosed to House investigators, his opinion included a striking warning against letting Trump and Eastman’s conduct stand without consequence.

“If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution,” Carter said then. “If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.”

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