In the next few months, Judge Tanya S. Chutkan will face what she herself recently called “a uniquely challenging” task. She will go line by line through the evidence the special counsel, Jack Smith, wants to present to a jury in support of his federal indictment charging former President Donald J. Trump on four criminal charges related to his plotting to overturn the 2020 election.
Her job is to determine which of myriad specific allegations about Mr. Trump’s actions can survive the Supreme Court’s recent ruling granting presidents a broad form of immunity from criminal prosecution for most of their official actions. Here is a look at the types of decisions Judge Chutkan will have to make, many times over.
If Mr. Trump undertook a specific action in his private capacity as a candidate for office, rather than in his role as the president, that act is deemed unofficial, according to the Supreme Court ruling. Such acts are not subject to immunity, so evidence about them can be cited in court to support the charges that Mr. Trump illegally tried to overturn the election, or even introduced as context to help a jury understand the case.
By contrast, if the action fell within what the Supreme Court referred to as the outer perimeter of presidential duties, it counts as official. In that case, it is entitled to, at a minimum, presumptive immunity, and the court must perform some additional analysis to decide whether it is off limits for any trial.
On matters like Mr. Trump’s attempts to strong-arm state officials into changing election results and his public lies that the election was stolen, prosecutors and defense attorneys are likely to disagree sharply about whether Mr. Trump was acting as a candidate who was seeking a new term in office, or as a president who was constitutionally charged with overseeing the enforcement of federal election laws.
Under the Supreme Court’s new doctrine, “official” actions by Mr. Trump would fall into one of two categories. Some official acts are core to the president’s exercise of executive power, in which case they are absolutely immune and no information about them can be used in his prosecution. Other official acts are more peripheral, in which case prosecutors might still be able to use information about them in court, depending on the circumstances.
The Supreme Court has already declared that Mr. Trump’s interactions with Justice Department officials count as core executive actions because the Constitution charges the president with overseeing federal law enforcement. Mr. Smith has removed discussion of his purported actions that fall into that category from the indictment.
A president’s peripheral official acts, the Supreme Court has said, are presumptively immune, too. But depending on the circumstances, exceptions can be made that would allow the information to still be part of a prosecution of that president.
The test is whether prosecuting a former president for such an action would pose a danger of intruding on the authority and functions of the executive branch, and therefore chilling future presidents from robustly carrying out their responsibilities. If not, then the act is not immune and evidence about it can be used in court.
The Supreme Court has said that Mr. Trump’s pressuring of then-Vice President Mike Pence, in his capacity as Senate president, to block the congressional certification of Joseph R. Biden Jr.’s Electoral College victory was an official act but that it might fall into the exception, since the Constitution assigns no role to the president or executive branch in such proceedings.
Judge Chutkan won’t make any decisions on immunity until at least the end of October, when the defense and prosecution have finished submitting their own written assessments of the case. At that point, she could ask the two sides to flesh out their arguments further at a hearing in Federal District Court in Washington. Any determinations she makes on the question of immunity will almost certainly be appealed, likely eventually to the Supreme Court, which will have the final say of which parts of Mr. Trump’s indictment will have to be thrown out and which can survive and go to trial.
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