What Happens After
Supreme Court Rejects Trump’s Absolute Immunity: Mapping 3 Scenarios
by Matthew A. Seligman, Ryan Goodman and Norman L. Eisen
May 10, 2024
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 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 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.
* * *
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.