SCOTUS: Trump is immune, but what is an official act?

1. Alleged false claims of election fraud.

2. Organized slates of electors in several states.

3. “Sham” election crime investigations by the DOJ.

4. Attempt to persuade the Vice President to refuse to certify the election.

5. False claims of election fraud to cause a riot and delay the certification.

The question now is whether any of these are official acts. Trump argued in his motion to dismiss that all of these acts were within the core of his official duties. The district court disagreed and so did the D.C. Circuit. This brings us to the Supreme Court.

The Five Acts Analyzed

Chief Justice John Roberts who wrote for the majority analyzed five major official acts that Trump was charged with:

1. False Claims of Election Fraud to State Legislators and Officials:

• Allegation: Trump and his co-conspirators used knowingly false claims of election fraud to persuade state legislators and election officials to change electoral votes from Biden to Trump.

• Court’s Analysis: The Court determined that this conduct involved interactions with state officials, which presents complex questions about the President’s authority. These actions were seen as attempts to influence state processes, which do not clearly fall within the President’s exclusive constitutional powers. The Court remanded this issue to the District Court to determine whether these actions were official or unofficial. The likely outcome is that Judge Chutkin will determine that this is private conduct.

2. Fraudulent Slates of Electors:

• Allegation: Trump and his co-conspirators organized fraudulent slates of electors in targeted states and submitted false certificates to be counted at the January 6 certification proceeding.

• Court’s Analysis: The Court viewed these actions as involving a mix of interactions with state officials and private parties. It noted that these actions might not fall within the scope of the President’s official duties as they were not directly related to the President’s exclusive constitutional authority. The Court remanded the matter for the District Court to make a fact-specific determination on whether these actions were official or unofficial. The likely outcome is that Judge Chutkin will determine that this is private conduct.

3. Leveraging the Justice Department:

• Allegation: Trump and his co-conspirators attempted to use the Justice Department to conduct sham election crime investigations and send a misleading letter to targeted states.

• Court’s Analysis: The Court found that these actions clearly involved the President’s use of official power. The President has exclusive authority over the Justice Department’s investigative and prosecutorial functions, including removing officials. As such, Trump was deemed absolutely immune from prosecution for these actions, as they fell within his conclusive and preclusive constitutional authority. Judge Chutkin will not be able to review this on remand and is bound by precedent.

4. Pressuring the Vice President:

• Allegation: Trump attempted to persuade the Vice President to use his ceremonial role at the January 6 certification proceeding to alter the election results.

• Court’s Analysis: The Court held that discussions between the President and the Vice President about their official responsibilities are official conduct. Since presiding over the certification proceeding is a constitutional duty of the Vice President, Trump’s attempts to influence the Vice President’s actions were considered official acts. The Court granted presumptive immunity but remanded the case to the District Court to determine if the prosecution would pose dangers to the Executive Branch’s authority and functions. Judge Chutkin will not be able to review this conduct on remand, Trump is immune for this conduct.

5. January 6 Communications:

• Allegation: Trump communicated with supporters, repeated false claims of election fraud, and directed them to the Capitol, leading to the January 6 attack.

• Court’s Analysis: The Court noted that a President’s public communications often fall within the outer perimeter of official responsibilities. However, the context in which these communications were made (e.g., as a candidate or party leader) could impact their classification as official or unofficial. The Court remanded this issue for the District Court to perform a detailed analysis of the content and context of Trump’s communications to determine if they were official acts. Chutkin will do an analysis similar to that of Hatch Act cases to determine if the communication was part of the campaign or presidential.

So What’s Left of the Indictment?

The Supreme Court’s majority opinion provided a nuanced approach to determining the scope of Presidential immunity. For actions that clearly involved the President’s exclusive constitutional authority, such as leveraging the Justice Department, Trump was granted absolute immunity. For actions involving interactions with state officials, private parties, or public communications, the Court remanded the issues to the District Court for a detailed, fact-specific analysis to distinguish between official and unofficial conduct. This approach aims to balance the need for Presidential immunity with the accountability of the President under the law.