Former President Donald Trump could still face a criminal trial for allegedly conspiring to overturn the 2020 election – but say that the odds of any trial starting over the next year depends on the results of the election, the speed of pre-trial hearings examining the extent of Trump's immunity and whether special counsel Jack Smith moves to narrow the indictment.
In August 2023, a D.C. federal grand jury indicted Trump on four felony charges for conspiring to thwart his 2020 electoral defeat and the peaceful transfer of power to President Joe Biden. In July, the Supreme Court ruled 6-3 that presidents have "absolute immunity from criminal prosecution" for acts that fall within the "exercise of his core constitutional powers he took when in office." Presidents, according to the ruling, have "at least presumptive" immunity from other official acts, and no immunity for unofficial acts.
That decision tasked U.S. District Judge Tanya Chutkan with weighing whether Trump was acting in an official or unofficial capacity when he made certain tweets and speeches to the public ahead of the Jan. 6 attack at the U.S. Capitol and worked with “private parties” to convince state officials to change votes for Biden to votes for Trump.
The judge is also set to weigh whether Trump can be prosecuted for pressuring Vice President Mike Pence to refuse to certify election results. The decision said Trump has presumptive immunity – but said that the government can rebut that presumption and that it’s up to the District Court to decide whether Trump’s actions posed “any dangers of intrusion on the authority and functions of the Executive Branch.”
Smith earlier this month asked for a three-week extension to respond to Chutkan’s scheduling order for pre-trial hearings.
South Texas College of Law Houston professor Josh Blackman called that move “significant.”
“He could have been ready to go on day one, but they're still not sure how they're going to proceed,” Blackman said. “I think that does make a difference.”
It’s still unclear what’s ahead – Chutkan could, for example, hold hearings to weigh whether Trump has immunity for certain acts before the November election. The ruling limits not only whether Trump can face charges for certain conduct, but also limits whether prosecutors can introduce protected conduct as evidence.
Chutkan isn’t expected to hold such hearings before the November election.
And if Trump wins, he wouldn't face prosecution as a sitting president under DOJ policy.
Still — the Washington Post reported that the DOJ plans to pursue charges against Trump up until Inauguration Day.
Stanford Law School professor Michael McConnell, a former federal appellate judge and a senior fellow at the conservative think tank Hoover Institution, said “the case could move along fairly expeditiously” if Smith limits the scope of the indictment to Trump’s private conduct.
"It really all depends on Jack Smith," McConnell said. “If he wants to throw in the kitchen sink, as he has done so far, then there’s going to have to be arguments and probably an appeal.”
He noted that the Supreme Court’s ruling did not lay out clear-cut rules for what constitutes official and private versus unofficial conduct.
“But it seems to me, it was clear enough,” he said. “And much of Mr. Trump's conduct, I think, appears private and non-official, and I'm referring here particularly to anything that he had to do, anything he did in an attempt to persuade either state legislatures or state election officials or electors to violate the law.”
Trump — who has continued to put forth unfounded claims of widespread voter fraud in 2020 — has argued he was acting within his capacity as an executive ensuring the integrity of the elections.
But McConnell said such calls to state and local election officials don’t fall into that bucket.
“The president has zero authority with respect to the administration of the election,” McConnell said. “He's quite clearly communicating in his capacity as the candidate.”
McConnell said Trump’s communications with Pence might be the “hardest, most gray area.”
Still, he said those interactions aren’t “that important” relative to Trump’s indictment as a whole.
“It seems to me that if Smith wants to move forward, that he would not give up very much by stripping the indictment of the arguably official conduct,” McConnell said.
McConnell said the Supreme Court’s ruling “leaves most of the conduct that Mr. Trump has been accused of on the private side of the line.”
McConnell said if Smith does file a narrow indictment, he doesn’t expect that to happen in coming weeks ahead of the election.
“It's almost an abuse of power on his part, in the midst of a presidential election to pursue a case when there is no non-political reason to hurry, and the Department of Justice has a long standing policy of not timing prosecutions in a way that would affect an election,” McConnell said. “We'll see what he does, but I think it's quite improper to move forward quickly, but I think he could if he wanted to.”
Blackman, a scholar at the libertarian think tank Cato Institute who has appeared as a speaker for the Federalist Society, said he sees the immunity ruling as in line with a 1982 court decision granting presidential immunity from civil lawsuits for official acts.
He pointed to Justice Neil Gorsuch, who took a similar note in his recent book tour – CNN reported that he argued that the Supreme Court’s ruling was a “natural extension” of its Nixon v. Fitzgerald precedent.
In a recent Washington Post op-ed, Harvard Law School professor Richard Lazarus said it’s fair to criticize the Supreme Court’s July immunity ruling for offering a too broad definition of presidential immunity.
Lazarus said that the ruling offers a “surprisingly clear road map for the successful felony prosecution of Trump” that doesn’t require evidence involving his official actions.
“The special counsel has more than enough incriminating evidence without it, beginning with the stunning recordings of Trump’s conversations with officials in states such as Georgia,” Lazarus wrote.
Lazarus pointed out that the ruling “leaves little doubt” that Trump lacks immunity for calls and meetings with state and local election officials or speeches that the judge determines Trump made in his capacity as a candidate for office.
Lazarus also said the court was more doubtful about Trump’s conversations with Pence, but said those interactions have “little practical importance for the fundamental question of whether Trump can be prosecuted and convicted of federal felony offenses.”
"It is now up to Smith and Chutkan to follow the pathway created by the Supreme Court to secure Trump’s conviction," Lazarus wrote.
