One of Donald Trump’s attorneys is claiming that the “fake-electors” scheme qualifies as an “official act," thus exempting him from being prosecuted after the Supreme Court's immunity ruling on Monday, the Hill reported.
Trump attorney Will Scharf told CNN Monday night that while some of the presumptive GOP nominee’s actions count as private conduct, meaning they can still be charged as crimes by special counsel Jack Smith, he should enjoy immunity for his failed attempt to put forward fake electors in key states following the 2020 election. “We believe the assembly of those alternate slates of electors was an official act of the presidency,” Scharf said, noting that the Supreme Court left that question for lower courts to decide.
But Trump-appointed Supreme Court Justice Amy Coney Barrett, while siding with the 6-3 conservative majority on immunity, wrote in her own opinion that the fake electors scheme should not in fact be construed as an "official act," Mediaite reported.
Specifically, Barrett agreed with liberal Justice Sonia Sotomayor’s dissent that acts which take place while a president is in office should be allowed to be introduced as evidence in a criminal trial. Barrett wrote that she disagrees with the belief "that the Constitution limits the introduction of protected conduct as evidence in a criminal prosecution of a President, beyond the limits afforded by executive privilege."
She added that the Constitution “does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable.” Essentially, Barrett argues that a jury should be allowed to hear “both the quid and the quo,” even if the quo could not itself be the basis of a criminal charge.
Writing specifically about Trump's fake-elector scheme: "In my view, that conduct is private and therefore not entitled to protection. The Constitution vests power to appoint Presidential electors in the States. And while Congress has a limited role in that process, the President has none.”
