Not So Fast, Donald Trump

Trump and his lawyers are crowing about the SCOTUS immunity ruling. But it won’t stop any of the cases in its tracks.

Photo: Chip Somodevilla/Getty Images

In its democracy-smashing opinion released on Monday, the Supreme Court issued all U.S. presidents a magic get-out-of-jail-free card. And we all began to wonder the same thing: Was Trump really going to get away with all his crimes?

The ex-president is under indictment in three jurisdictions and was found guilty by a jury in Manhattan of 34 felonies. But the new rules around “absolute presidential immunity” will directly impact Trump’s four criminal cases, in some instances quite profoundly. Is all hope for legal accountability lost?

The short answer is “no,” not by any objective view.

While the road ahead will be tougher for prosecutors, and in some cases far tougher, there are some clear paths forward in every case. While the new immunity rule does sweep a lot of evidence off the table and renders any charges based solely on that evidence impossible, it still leaves a swath of evidence and illegal actions subject to prosecution.

Today, I’ll walk through each of the four criminal cases and discuss how the Supreme Court’s ruling might limit them in some cases but also keeps important parts of all of them alive. I hope you’ll come away with the same feeling I did, at least once I sat down and really thought it through: Trump is by no means out of the woods anywhere as a result of this ruling.

The D.C. January 6 Case

The Supreme Court’s majority opinion on presidential immunity does the most damage to Special Counsel Jack Smith’s D.C. case against Trump for attempting to overturn the 2020 election. Much of the evidence that was cited in the indictment will likely be considered off limits as falling within Trump’s “core presidential powers” or otherwise within the wide ambit of his official duties.

These include conversations Trump had with Department of Justice officials like Jeffrey Clark about using the Department to put pressure on GOP-controlled legislatures to undo their elections and declare for Trump. They also likely include all conversations Trump had with officials, including the Attorney General and his White House attorneys, about the 2020 election and how fraud-free it actually was. They may also include any conversations Trump had with White House officials during the attack on the Capitol, and it may even include efforts by Trump to convince Mike Pence to overturn the results during the Electoral College count in Congress.

But here’s a fascinating angle: As I wrote about when the immunity case was first argued, Justice Amy Coney Barrett cornered Trump’s lawyer during oral argument and got him to admit that at least three allegations in the indictments were private, not official, in nature. These include the allegations that Trump 

• Hired a private attorney to spread false election claims, 

• Hired a private attorney to file false court documents to challenge the election, and

• Hired a private attorney to concoct and execute the fake elector scheme in the battleground states.

Barrett unfortunately sided with the majority in its horrific opinion, but she wrote a separate concurrence where she dropped an interesting footnote in the opinion. (Yes, we legal geeks read the footnotes like judicial tea leaves.) 

Barrett noted that Trump’s attempts to organize fake electors was private, not official, in nature. Speaking of the power to appoint Presidential electors, she observed that this is vested in the states, “And while Congress has a limited role in that process … the President has none. In short, a President has no legal authority—and thus no official capacity—to influence how the States appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct.”

If Judge Tanya Chutkan agrees that the above actions were all private in nature, or if Trump otherwise stipulates to what his attorney represented before the Supreme Court, these private actions won’t be afforded immunity and can form the basis of a narrowed case against Trump. 

If you missed my analysis in The Big Picture yesterday, there is also this nugget. The D.C. trial almost certainly will not occur before the election, given this Supreme Court ruling and the need now to parse the official versus unofficial nature of Trump’s alleged criminal conduct. But in order to make this determination, Judge Chutkan is going to have to hold an evidentiary mini-trial, likely sometime this fall, possibly even in October. Surprise!

I am eying this timeframe because I believe Judge Chutkan will get the case back sometime in early August, if the normal timing of a High Court remand applies. She will then ask the parties for briefing on the matter, which will eat up another few weeks. That could put all of Trump’s criminality around January 6 front and center before the public this fall in a multi-week, public hearing— right before the election. 

The Florida Classified Documents and Obstruction Case

In Florida, Trump is charged with illegally taking classified and other top secret documents with him to Mar-a-Lago, then obstructing justice to cover his tracks. But the important thing to realize is this: All the alleged criminal activity happened after Trump left office. 

This matters because you can’t claim to be acting in an official capacity when you are no longer an officer. Under this bright line, immunity would not apply to the allegations in the Florida case.

As Joyce Vance notes in her Civil Discourse newsletter today, Judge Aileen Cannon, who is batting for Trump fairly brazenly, may seek to concoct reasons why Trump’s behavior was somehow a carry-over of his official duties. “It’s not hard to imagine some pretzel logic decision-making that suggests that because charges about the possession of classified documents go to a president’s core constitutional duties, Trump is entitled to immunity and can’t be prosecuted,” writes Vance.

But if she overreaches, she risks getting smacked down again by a skeptical Eleventh Circuit, which already overturned her in a related Trump classified documents matter. Another instance of her finger on the scale, and Jack Smith may ask that she be removed from the case. And they just might grant it. 

So Judge Loose Cannon will need to move carefully. There simply is no common sense argument for why any of the alleged behavior should be subject to immunity, having all occurred after the ex-president left the White House. The best I can come up with is that Trump took the documents with him when he was president and while it was still “official”—but it still was his illegal retention and obstruction that occurred after he was no longer president and was just a private citizen.

The Manhattan jury verdict

Trump’s lawyers were quick to ask for leave to file a motion to overturn the jury’s verdict, on grounds that the Supreme Court’s decision meant some of the evidence used against Trump in his criminal trial was covered by immunity and was therefore prejudicial error requiring a new trial.

This will be a hard argument for the Trump defense to win. The evidence in question, notably a meeting that took place in the White House between Trump and Cohen, still concerned an entirely private matter. It is also just one small piece of the evidence against Trump, the rest of which was private and not official in nature at all. Trump’s lawyers have a mountain of other evidence to get past, and it won’t be easy.

But Trump’s lawyers did manage to receive a delay of the sentencing hearing, with Judge Juan Merchan moving the date from July 11 to September 18 to give time for the motion on immunity to be heard. But this, all in all, may not be so great for Trump either. For starters, that puts the sentencing much closer to the election. If Merchan sentences Trump to any jail time (even if that is suspended pending appeal), that could weigh on the minds of many undecided voters far closer to their decision point. 

And as legal analyst Andrew Weissman noted, it also means that any appeal would not reach the U.S. Supreme Court before the election. That’s because any challenge to Judge Merchan’s ruling would have to go up through the New York appellate system first, and that likely will eat up all of the fall.

The Georgia RICO case

The Georgia case is on hold while the defendants’ motion to disqualify Fani Willis is taken up by the appellate courts there. But once that case resumes, the trial court will face the question of the U.S. Supreme Court’s immunity ruling and how it affects Trump as a defendant in that case.

In light of the opinion, Judge McAfee will also need to hold an evidentiary hearing, similar to the one Judge Chutkan will hold, unless the parties stipulate as to what evidence and allegations should be stricken. The parts that come out will likely include any of Trump’s conversations with his own officials about the elections or false allegations of election fraud.

But beyond this, Georgia state prosecutors will make many of the same arguments Jack Smith will make and that Justice Barrett has identified. Trump’s efforts to organize fake electors in the state, as well as his multiple phone calls to pressure election officials to overturn the results—including his infamous call to Georgia Secretary of State Brad Raffensperger to “find” 11,780 votes—weren’t done by him as president but as candidate Trump. As Justice Barrett noted, under the Constitution, the president isn’t officially charged with any responsibilities for state run elections.

On top of this, the criminal case in Georgia is a RICO charge. That means Trump can be found liable if he is found to have been a participant in the criminal enterprise, in this case the concerted effort to overturn the Georgia election results. 

As I wrote when the Georgia indictment was first set to drop, the gist of RICO in Georgia is about proving there were at least two predicate crimes committed as a part of an enterprise engaging in a pattern of racketeering activity.

“Predicate crimes” include crimes like computer trespass and filing false documents—both of which are readily provable here. An “enterprise” is any group with a common goal, like overturning the election results. And a “pattern of racketeering activity” means engaging in at least two predicate crimes in order to accomplish a common scheme, in this case overturning the election. Anyone associated with the enterprise that engages in this pattern of racketeering is liable under the state’s RICO law.

Prosecutors can successfully prove Trump’s involvement in the racket (he was, after all, in charge of it) and prove that the enterprise committed at least two criminal, predicate acts. And they could achieve this even if unable to charge Trump directly for certain of his immunized behavior. 

Instead, they could focus on the other defendants’ behavior—which enjoys no such immunity—and then tie it to Trump successfully as head of the group. This is, after all, precisely how RICO cases snag the top dog in a mob-boss led criminal enterprise, who often has few, if any, direct fingerprints on the evidence.

To sum up, in each of the above examples, and across all four jurisdictions, I see clear ways that prosecutors can narrow their charges and evidence to things that were private or that did not happen during the Trump presidency. In so doing, the cases can proceed without presidential immunity as a bar. 

To my mind, that keeps these cases very much alive and of continued high risk to Trump.