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The Supreme Court’s ruling does not place Trump above the law regarding his attempts to overturn the 2020 election
With the White House in the background, President Donald Trump speaks at a rally in Washington on Jan. 6, 2021, prior to the U.S. Capitol insurrection. (Jacquelyn Martin/AP)Richard Lazarus is the Charles Stebbins Fairchild Professor of Law at Harvard Law School.
The Supreme Court’s recent opinion in Trump v. United States can be fairly — and sharply — criticized for defining the scope of presidential immunity far too broadly. But nothing in the court’s ruling places former president Donald Trump above the law for his alleged criminal acts in trying to overturn the results of the 2020 presidential election.
In fact, Chief Justice John G. Roberts Jr.’s opinion offers a surprisingly clear road map for the successful felony prosecution of Trump. The case against him is now back before U.S. District Judge Tanya S. Chutkan, and she should follow that clear pathway without further delay.
The central allegation of special counsel Jack Smith’s indictment is that after losing the 2020 election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting and certifying of the election results. According to the indictment, Trump’s conspiracy included three distinct sets of criminal acts. At most, only one of these three acts is derailed by the Supreme Court’s ruling, leaving plenty of room for Trump’s conviction on multiple felony counts.
First, Trump spoke on the phone and in person with state and local election officials to pressure them to refuse to certify the valid results of the election in their jurisdictions. Second, Trump incited a mob to attack the U.S. Capitol on Jan. 6 for the purpose of physically preventing members of Congress from certifying the election results. Finally, he improperly put pressure on Vice President Mike Pence, serving in his role as presiding officer of the Senate, to block that chamber from voting to certify the results.
The chief justice’s opinion leaves little doubt that Chutkan can now validly conclude that Trump is not entitled to any immunity from felony prosecution (even though he was president at the time) for the calls and meetings he held with state and local election officials to persuade them to block the election results. The court ruled that any immunity Trump enjoys, whether absolute or presumptive in nature, is limited to “official acts.” There is no immunity for actions that are “unofficial” in nature. The court accordingly invited Chutkan to analyze Trump’s “interactions with a wide variety of state officials and private persons” to determine whether those interactions were official or unofficial in nature. But Roberts’s opinion did not hesitate to make clear that Chutkan could legitimately conclude that all these contacts were unofficial in nature. The court carefully pointed out that “this alleged conduct cannot be neatly categorized as falling within a particular Presidential function.”
The court similarly left little doubt that Chutkan was free to conclude that the speeches Trump made to the general public, including the rally on Jan. 6, which prosecutors alleged were designed to incite the mob that attacked the Capitol, were unofficial in nature and therefore not entitled to any immunity. The chief justice expressly acknowledged that there are “contexts in which the President … speaks in an unofficial capacity.” And to drive the point home, he offers an example: “as a candidate for office.” The reference is hardly subtle. The court is peremptorily endorsing a finding that, based on Chutkan’s “objective analysis” of “content, form, and context,” Trump’s speeches were those of a “candidate for office” and not entitled to immunity from prosecution.
Yes, the court was more doubtful about whether Trump’s discussions with Pence were likewise outside the scope of presidential immunity. But, while that presents an intriguing legal issue, it has little practical importance for the fundamental question of whether Trump can be prosecuted and convicted of federal felony offenses. At some point, additional evidence or felony offenses just become piling on. The court clearly left open the possibility that Chutkan could conclude that any presumptive immunity to which the president might otherwise be entitled for conversations with the vice president was rebutted. Both because the vice president in this instance was acting as a legislative branch official and because the president “plays no direct constitutional or statutory role” in the election certification process.
Finally, it is quite clear that the special counsel can secure a conviction without relying on any of the evidence that the Supreme Court ruled must be out of bounds on immunity grounds even for a prosecution of unofficial acts that are not subject to immunity. That includes evidence of Trump’s “discussions with Justice Department officials” about securing an official opinion suggesting fraud in the 2020 election. While such evidence would certainly have weighed in favor of a jury’s finding the former president guilty, 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.
The bottom line is clear. Whether you are outraged by or sympathetic to the surprising sweep of the Supreme Court’s presidential immunity ruling, it nevertheless leaves the former president very much open to a successful felony prosecution.
Will this prosecution occur before the November election? No, it will not, which is why many blame the court for adding to the delay that has marked this prosecution from the outset. Some of that delay, while frustrating to many, is understandable. It should not be easy to convict a former president of a felony for the first time in the nation’s history. However, the court is not blameless and should have taken up the special counsel’s request last December to hear the case then on an expedited basis. But the major source of the delay has not been the court but the attorney general’s decision to wait almost two years before naming a special counsel.
It is now up to Smith and Chutkan to follow the pathway created by the Supreme Court to secure Trump’s conviction. And it is the responsibility of the American people to determine the relevance of the serious allegations against the former president when they cast their votes in November.
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