Opinion: Why Trump shouldn’t celebrate the immunity ruling just yet

Editor’s Note: Norman Eisen is a CNN legal analyst and editor of “Trying Trump: A Guide to His First Election Interference Criminal Trial.” He served as counsel to the House Judiciary Committee for the first impeachment and trial of then-President Donald Trump. E. Danya Perry is the founding partner at Perry Law, former deputy chief of the Criminal Division for the Southern District of New York, former deputy attorney general for the State of New York and chief of investigations for the Moreland Commission. Joshua Kolb is an attorney at Perry Law and served as law clerk for the Senate Judiciary Committee. The views expressed in this commentary are their own. Read more opinion at CNN.

Now that the Supreme Court has issued its historic decision on presidential immunity — one that will be “for the ages,” as Justice Neil Gorsuch put it — the most pressing question yet to be answered is far more immediate: What does this mean for special counsel Jack Smith’s prosecution of former President Donald Trump’s attempt to overturn the results of the 2020 election?

Norm Eisen - Courtesy Norm Eisen
Norm Eisen - Courtesy Norm Eisen

We vehemently disagree with the majority decision to extend any immunity to aspects of Trump’s 2020 election interference. But the court’s opinion also makes clear that this ruling is not a death knell for Smith’s case.

True, as the case now returns to the trial court, there is no longer time for a full jury trial in 2024. But the opinion calls on District Court Judge Tanya Chutkan to initiate the next best thing: an evidentiary hearing — a kind of mini-trial — that will thoroughly ventilate the facts in this case. She should do so quickly.

Smith charged Trump with engaging in a “criminal scheme” to subvert the 2020 election; Trump has pleaded not guilty to four counts. The trial, which was originally scheduled to begin on March 4, has instead been stayed since December 2023. That is when Trump appealed an order refusing to dismiss the case on immunity grounds — and the Supreme Court first declined to review the case, beginning its unconscionable slow-roll that finally ended almost seven months later with this new decision.

E. Danya Perry - Courtesy  E. Danya Perry
E. Danya Perry - Courtesy E. Danya Perry

On Monday, the Supreme Court essentially found a middle ground between the government’s position and Trump’s. Rejecting Trump’s absurd claim of blanket criminal immunity for official acts, the court still carved out a broader scope of conduct for which a president cannot be prosecuted, even after they leave office.

In doing so, the court adopted and modified the approach it had previously outlined, in the 1982 case Nixon v. Fitzgerald, establishing a president’s civil liability. All the parties, including Trump’s team, had already conceded that a president does not enjoy immunity from prosecution for private acts — just as a president can be held civilly liable for private conduct. In Nixon v. Fitzgerald, the Supreme Court held that a president enjoyed civil immunity for all “official acts.” Now, in Trump v. United States, the court grappled with which “official” acts should also receive criminal immunity.

Joshua Kolb - CJ Studios
Joshua Kolb - CJ Studios

Writing for a 6-3 majority that split on party lines, Chief Justice John Roberts established a three-level immunity test: (1) absolute immunity when the president is exercising “his core constitutional powers,” (2) “presumptive immunity from prosecution for his official acts” that are not core to presidential duties (such as exercising powers given to him by Congress) and (3) “no immunity for his unofficial acts.”

Given that ruling, the next logical question is: Which of the alleged actions taken by Trump, charged in the indictment, are protected official acts and which aren’t?

First, the court has ruled that all of the allegations concerning Trump’s interactions with the Justice Department — and his attempt to get them to interfere in the election — were official. Therefore, all of that conduct is protected by immunity and cannot be presented at trial.

But the court also held that there are two allegations for which Trump has presumptive immunity, yet this presumption can be overcome: the allegations surrounding his interactions with former Vice President Mike Pence, and his public communications. However, the court did not specify what it would take for that presumption to be overcome. Again, that is for resolution by Chutkan in the mini-trial.

Finally, the court stated that there is one category of alleged conduct that requires a “fact-specific analysis of the indictment’s extensive and interrelated allegations”: all of Trump’s interactions with “persons outside the Executive Branch,” including state officials and private parties. More grist for Chutkan’s courtroom.

The upshot is that this ruling ends any hope that this case will conclude before the election. But it also puts crucial judgments about Trump’s accountability back in Chutkan’s capable hands.

In order to settle the extent of Trump’s immunity, Chutkan should expeditiously schedule the mini-trial to hear witness testimony and receive other relevant evidence from both parties. This would not be unprecedented. In fact, Chutkan can be guided by the process the federal court in Georgia utilized to handle a similar issue in the Fulton County election overthrow criminal case.

After a grand jury indicted 19 individuals, including Trump, on state conspiracy charges, two of the defendants — former White House Chief of Staff Mark Meadows and former Trump administration Justice Department official Jeffrey Clark — attempted last year to remove the case to federal court, claiming the charges involve actions that occurred in their capacities as federal officers. (Four of the 19 charged in the case have pleaded guilty, while Meadows and Clark are among those who have pleaded not guilty.) District Court Judge Steve Jones promptly held evidentiary hearings to determine whether Meadows and Clark were indeed functioning within the scope of their official duties as federal officers.

Meadows and Clark were given ample opportunity to make their arguments and develop a thorough factual record for the court. In fact, at his hearing, Meadows himself testified before the judge, describing his role as chief of staff and how that impacted the charged conduct. Meanwhile, state prosecutors presented some of their key evidence to show that the defendants were acting outside the scope of official duties — including the infamous recorded phone call between Trump and Georgia Secretary of State Brad Raffensperger, which Meadows facilitated and joined. Ultimately, Jones ruled against Meadows and sent the case back to state court, and the 11th Circuit upheld his decision. Clark’s removal attempt also failed.

The 11th Circuit also endorsed the mini-trials themselves, holding that “determining whether Meadows’s proof was competent, the district court was entitled to evaluate the demeanor and presentation of witnesses, assess the credibility of testimony including Meadows’s, and weigh the competing evidence.”

With that blessing, Chutkan should look to those federal hearings in Georgia as a model.

The issues at play in the Georgia removal proceedings are strikingly similar to the ones Chutkan will be forced to consider with respect to Trump. The Supreme Court has explicitly directed Chutkan to determine whether Trump’s interactions with state officials and private parties were official — and left open the door for her to hold hearings over allegations that involved Pence, too. Chutkan can give both parties the opportunity to develop facts supporting their competing positions and then make her ruling on immunity, ensuring that Trump continues to receive due process throughout.

The prosecution could call witnesses — such as Pence or former Attorney General Bill Barr — to testify about Trump’s actions in the wake of the 2020 election and whether they fell within his official duties as president, along with other supporting documentary evidence. The defense would also have the opportunity to introduce testimonial and documentary evidence supporting Trump’s motion to dismiss on immunity grounds — and could even put Trump himself on the stand to explain his conduct, just as Meadows did. This approach would assist Chutkan in swiftly ascertaining the nature and scope of Trump’s newfound presidential immunity.

It is also far superior to the competing approach outlined in a separate but related civil case in DC, Blassingame v. Trump, in which members of Congress and Capitol Police officers are suing Trump for harms allegedly caused by the Jan. 6, 2021, attack on the Capitol — in part, the complaint alleges, as a result of Trump’s inflammatory remarks that day on the Ellipse. In response to Trump’s assertion of civil immunity there, the DC Circuit put in place a lengthy discovery schedule for the lower court to determine the extent of Trump’s civil immunity.

But applying that civil process in the criminal case would be inappropriate: While this type of extended discovery is commonplace in civil cases, including those without the unique immunity issues involved here, it would be quite unusual in the criminal context. Moreover, the criminal allegations against Meadows and Clark are far more analogous to the federal case against Trump than the civil lawsuit seeking monetary damages — among many other distinctions.

Beyond the procedural considerations, the mini-trial would also serve a vital function for the public — allowing voters to learn more details about Trump’s alleged election interference. It would utilize the adversarial process at the heart of our criminal justice system to elucidate crucial information about the most grievous attack on our democracy since the Civil War.

One other thing that this opinion makes clear is that Smith should seriously consider slimming down his indictment — not only excising the portions that the court has tossed for him (such as the allegations concerning the DOJ) but also considering where else he can “slim to win,” as prosecutors often refer to this process. Smith should do that immediately, to make Chutkan’s task as easy as possible before the inevitable appellate review of her decision.

There will be ample time for further consideration of the far-reaching implications of the Supreme Court’s momentous decision, and what it means for the future of the presidency and the principle that no one is above the law. Justice Sonia Sotomayor, in a dissent joined by justices Elena Kagan and Ketanji Brown Jackson, warned, “The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”

But the fact-finding at the heart of this case remains essential for the future of the republic.

As Americans face a stark choice this fall, one made even more complicated by last Thursday’s presidential debate, they are entitled to know how close Trump came to decimating our democracy four years ago. That can now begin to happen again — so it’s time for the case to get back on track.

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