In the coming months, Judge Tanya S. Chutkan will face what she recently called a “very difficult” task. She presented evidence that Special Counsel Jack Smith wants to present to jurors in support of a federal indictment on four criminal counts related to former President Donald J. Trump’s plot to subvert the 2020 election. I plan to go through it line by line.
Her work will determine which of the myriad specific allegations about Trump’s conduct survive the Supreme Court’s recent decision granting the president broad immunity from criminal prosecution for most official actions. It is to judge. Here’s a look at the types of decisions Judge Chutkan has to make over and over again.
Vivien Leigh/New York Times
According to the Supreme Court’s ruling, if Trump takes certain actions in his personal capacity as a presidential candidate, rather than in his role as president, those actions are considered unofficial. There is no immunity for such acts, so evidence about them could be cited in court to support charges that Trump illegally tried to overturn the election, or provide context to help juries understand the case. It may be introduced as.
By contrast, a case is considered formal if it falls within the confines of what the Supreme Court has called a presidential function. In this case, the court is entitled to at least a presumed immunity, and the court must perform additional analysis to determine whether the trial is off-limits.
On issues such as Mr. Trump’s attempts to forcefully influence state officials to change the election results and his public lies that the election was stolen, prosecutors and defense attorneys have argued that Mr. Trump committed fraud. Opinions are likely to be sharply divided over whether he acted as the candidate we wanted. for a new term or as a president constitutionally charged with overseeing the implementation of federal election laws.
Vivien Leigh/New York Times
Under the Supreme Court’s new doctrine, Trump’s “official” actions would fall into one of two categories. Some official acts are so central to the president’s exercise of executive power that they are completely immune and no information about them can be used to prosecute the president. Other public acts are more peripheral, and even then, prosecutors may be able to use information about them in court, depending on the circumstances.
The Supreme Court has already declared that Trump’s interactions with Justice Department officials constitute core executive action because the Constitution gives the president responsibility for overseeing federal law enforcement. Mr. Smith removed from the indictment any discussion of his alleged conduct that fell into that category.
Vivien Leigh/New York Times
The Supreme Court stated that the president’s peripheral official acts are also presumed exempt. However, depending on the circumstances, exceptions may be made to allow that information to continue to be part of the prosecution of the president.
The test is whether prosecuting a former president for such conduct intrudes on the powers and functions of the executive branch, thereby risking a chilling effect on future presidents from fulfilling their responsibilities. It is. If not, the act is not exempt and evidence regarding the act may be used in court.
The Supreme Court made it official that Trump, in his capacity as president of the Senate, pressured then-Vice President Mike Pence to block Congress’ certification of Joseph R. Biden Jr.’s Electoral College victory. It was an act, but he said it was a possibility. This is an exception because the Constitution does not assign any role to the president or the executive branch in such proceedings.
Vivien Leigh/New York Times
Judge Chutkan will not make a decision on immunity until at least the end of October, when the defense and prosecution have submitted their written evaluations of the case. At that point, she could ask both sides to further flesh out their claims at a hearing in U.S. District Court in Washington. Any decision he makes on the immunity issue will almost certainly be appealed and ultimately likely to the Supreme Court, which will decide which parts of Trump’s indictment it has to throw out and which It will have the final say on whether any portion survives to go to trial. .
