Immune from Prosecution?

Ankush Khardori is a senior writer for POLITICO Magazine and a former federal prosecutor at the Department of Justice, where he specialized in financial fraud and white-collar crime. He has also worked in the private sector on complex commercial litigation and white-collar corporate defense. His column, Rules of Law, offers an unvarnished look at national legal affairs and the political dimensions of the law at a moment when the two are inextricably linked.

 
The Supreme Court’s decision on Donald Trump’s claim to be immune from prosecution may go down as one of the most brazenly political decisions in the history of the Supreme Court.
 
The opinion will have far-reaching consequences for the presidency, but the immediate effect will be to exponentially shrink the odds of a trial before November on Trump’s effort to remain in power after he lost the 2020 election. Indeed, the opinion might come to be known as Bush v. Gore 2.0 — a stunning intervention that could plausibly swing the presidential election to Trump. 

Still, the decision does leave some room for Justice Department prosecutors to maneuver, and for U.S. District Judge Tanya Chutkan, who is presiding over the case, to move forward before November. Both prosecutors and the judge should do everything within their power to do so — notwithstanding the Republican appointees’ evident desire to make that as difficult as possible.

The ruling is undeniably a major win for Trump, and has already infuriated many in the legal world, though it was no surprise where this was headed. The six GOP appointees who make up the conservative supermajority held — for the first time in U.S. history — that a president has “a presumptive immunity from criminal prosecution” for any actions related to his official responsibility.

To rebut that presumption, the government must show that criminalizing such an act would create no “dangers of intrusion on the authority and functions of the Executive Branch” — a decidedly vague but potentially very narrow exception to this newly created rule.

What should they do?

 
On a more practical level for the case at hand, the court held that Trump cannot be prosecuted based on his efforts to weaponize the Justice Department to pursue his false claims of voter fraud because he is “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.” Trump is also “at least presumptively immune” for his alleged efforts to strong-arm then-Vice President Mike Pence into throwing the election to Trump at the electoral certification on Jan. 6, 2021.

 
The court remanded the case to Chutkan to determine whether the other allegations in the indictment deserve immunity from prosecution based on the nebulous guidance issued by the court.

The decision is a mess for prosecutors and the judge. Perhaps by design, it does not provide a clear roadmap for how they should proceed, which in turn means that there could be further disputes about how to interpret and implement the ruling.
 
Special counsel Jack Smith and his colleagues at the Justice Department have been put in a terribly difficult position, but they should advance the case as aggressively as possible, even if that means that it cannot be fully resolved by Election Day.
 

For one thing, they appear to have no choice in light of the majority’s ruling but to drop the allegations concerning Trump’s effort to use the Justice Department for his political ends, as shocking as that is by itself.

As for the rest of their allegations — including Trump’s effort to pressure Pence, to strong-arm state officials like Georgia Secretary of State Brad Raffensperger and to lie to pretty much anyone within earshot about the election — they should try to present the district court with evidence that criminalizing the particular conduct at issue would not intrude on the authority and functions of the executive branch, properly understood. 

That may require them to quickly amass more scholarship on the president’s duties in these contexts and, perhaps, to gather testimony from former government officials about the president’s responsibilities — or lack thereof — in these areas as a historical matter.
Chutkan has no choice but to take the court’s decision seriously, of course, even if it “will have disastrous consequences for the Presidency and for our democracy,” in the words of Justice Sonia Sotomayor’s dissent. I do not envy her, but she has an extraordinary responsibility on her hands.
 
One way to go forward would be for Chutkan to solicit briefs as quickly as possible on the parties’ position on the status of the indictment in the wake of the court’s ruling. Trump will continue to argue that it should all be dismissed or held in abeyance for some reason or another, but Smith and his team can present their best case for continuing the prosecution after the Supreme Court’s ruling.

If for some reason there are evidentiary questions that need to be resolved, those hearings should happen as quickly as possible, and the government should present as much evidence as is reasonably possible — including evidence concerning the conduct on Trump’s part that remains at issue in the prosecution, and including evidence that has not yet become public.
 
Prosecutors usually do not like to have trial witnesses testify in pretrial proceedings — among other things, because they can potentially be impeached at trial with any inconsistent statements — but this is the rare situation where that preference should be ignored. If there are hearings of any sort before November where it would be appropriate, prosecutors should consider calling people like Raffensperger and even Pence.
 
Chutkan’s overriding objective should be to move this case as expeditiously as possible before November, even if that means trying to resolve all of these questions and perhaps even scheduling a trial that may not end before Election Day.
 
The law, the public and common sense are all on her side. Chutkan has previously noted that the public has a strong interest in a speedy trial, and as I have noted before, a federal statute requires judges to set trial dates that account for “the best interest of the public.”
 
According to polls that POLITICO Magazine has commissioned over the last year, the public has had strong views on all of this.
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A large majority of Americans — about 60 percent of them, including two-thirds of independents — have repeatedly told pollsters that Trump should stand trial in this case before November. Presumably they would like to know whether they are being asked to reelect a man who committed an anti-democratic criminal scheme to retain power.
 
Earlier this year, we asked whether Americans trusted the Supreme Court to issue a fair and nonpartisan ruling on Trump’s immunity claim, and less than a quarter of them expressed confidence in the court. The skeptics were right.
 
In a more recent poll that we conducted just weeks ago, Americans identified the Supreme Court as the least trustworthy group of actors in the criminal justice system. After this decision, can you blame them?

The Republican appointees’ decision is only going to further bolster the notion that they are committed to partisanship in the most important and politically consequential cases that come before them.

They claim to be textualists, but there is no textual support for their ruling in the Constitution. They claim to be originalists, but there is no meaningful historical support for their decision. They claim to reject legal reasoning guided by structural inferences from the text of the Constitution and practical considerations, but their ruling is a collection of contrived — and wildly unconvincing — arguments that proceed on precisely those fronts. The standard that they created has no basis in constitutional text, history or logic.
 
The composition of the Republican-appointed majority that issued this ruling is an indictment of its own. Three of the justices (John Roberts, Brett Kavanaugh and Amy Coney Barrett) made their careers working on Bush v. Gore — the shameful predecessor in spirit to today’s ruling. Three of them (Neil Gorsuch, and Kavanaugh and Barrett) were appointed by Trump — the literal defendant in this case, the most important criminal prosecution in the country’s history. Two of them (Clarence Thomas and Samuel Alito) should have recused themselves amid scandals that have further undermined the institution’s credibility with the public.
 
Those angry about today’s ruling should train their outrage on the Republican appointees on the court, but they should not stop there.

-Politico

We should follow the lessons of British History: