This is a special edition of Keeping Up With the Trump Trials. The Supreme Court ruled that Donald Trump (and all future presidents) enjoys absolute immunity for “official” acts committed while in office. The decision will affect every one of the criminal indictments Trump is currently facing—even the hush money case, in which a jury already found the former president guilty of 34 felonies—and in order to make sense of what could happen next, we’re going through Trump’s legal cases one by one to understand how his immunity affects each prosecution.
Last week, the Supreme Court ruled that Donald Trump is in fact immune from criminal prosecution for “official” acts he undertook while in office, and now the judges assigned in all four of his criminal indictments must go back to the drawing board to figure out what comes next.
These judges must comb through every page of prosecutors’ lengthy indictments to delineate which of Trump’s actions should be considered an official act—which prosecutors can no longer touch, as a charge or evidence—or an unofficial act, which carries no immunity protection. The court didn’t offer many guidelines here, declaring only that official acts are “core” presidential powers. Though Chief Justice John Roberts did write that Trump’s discussions with his Department of Justice, during which he pushed to have the 2020 election results overturned, are an official act. So are Trump’s actions to push his vice president, Mike Pence, to reject swing states’ electoral votes on Jan. 6.
In order to suss out what could happen next, we spoke to Adam Pollock, a former assistant attorney general of New York, and went through each of Trump’s indictments to get a sense of where the cases stood before the SCOTUS immunity decision and how they stand to change.
The New York Hush Money Case
This was the case about Trump’s affair with adult film star Stormy Daniels and how the former president orchestrated a hush money scheme to keep Daniels quiet ahead of the 2016 presidential election. It’s the only criminal case against Trump that has gone to trial, and a jury found the former president guilty of 34 felony counts.
Before SCOTUS decision: New York Supreme Court Justice Juan Merchan had scheduled Trump’s sentencing for Thursday.
What’s next: Immediately after the ruling, Merchan announced that sentencing would be delayed until Sept. 18 while he considered both sides’ arguments on how presidential immunity affects the conviction. He will spend the next three months deciding which, if any, portions of Manhattan District Attorney Alvin Bragg’s criminal indictment contain “official” acts that Trump should be immune from. The bulk of this case rests on Trump’s personal activity, before he entered the White House, which would be considered unofficial acts that are not protected by presidential immunity. Trump’s attorneys haven’t disputed that fact and instead are arguing that the evidence prosecutors used in this case—Trump’s social media posts and phone records—should be considered “official-acts evidence.” Pollock feels that this argument doesn’t hold water, since “talking while president doesn’t alone transform something into an official act.”
What may get dicey is that multiple Trump White House officials, including his former Communications Director Hope Hicks, testified during the hush money trial; Hicks’ testimony affirmed that Trump knew about the Daniels payment and cared about how news of the payment was playing with the public’s perception of him. Merchan could find that Hicks was an official adviser to the president. That would make her testimony off-limits for prosecutors because, according to SCOTUS’s immunity decision, “testimony or private records of the President or his advisers” can’t be used as evidence.
However, Pollock believes, even if Merchan finds that Hicks’ conversation with Trump was an official act, it may not undo the former president’s guilty verdict. “He would still likely find it to be a ‘harmless error’ that didn’t affect the jury’s consideration,” said Pollock. “Merely talking while president should not convert the conversation to an official act. My impression is that the test should be about what they are talking about and not who they’re talking to.”
The Georgia Election-Interference Case
Fulton County District Attorney Fani Willis charged Trump and 18 others under Georgia’s RICO law for participating in an illegal plot to overturn the state’s 2020 election results—aka the fake-electors scheme. Since the beginning of this year, this case has been plagued with drama after misconduct allegations surfaced about Willis.
Before SCOTUS decision: This case has been on pause since June, when Georgia’s Court of Appeals ordered that all pretrial proceedings be halted until it could resolve an appeal from Trump’s attorney that seeks to disqualify Willis from prosecuting the former president.
What’s next: Once the appeals court rules issues its ruling, the case will go back to Judge Scott McAfee, who will have to consider a big question: Was Trump’s attempt to influence fake electors in the aftermath of the 2020 election an official act? Pollock thinks the answer is a pretty straightforward no: “The only reason you would be attempting to influence electors is with your candidate hat on and not your president hat on.” Supreme Court Justice Amy Coney Barrett’s concurring opinion seems to hint at this, with a footnote that acknowledges, “Sorting private from official conduct sometimes will be difficult—but not always.” She proceeds to write that “the President’s alleged attempt to organize alternative slates of electors,” in her view, is conduct that’s private and not entitled to immunity protection.
Willis’ indictment also includes conversations Trump had with his Justice Department, which would be off-limits for her. What’s not clear is whether Willis can still use Trump’s infamous phone call with Georgia Secretary of State Brad Raffensperger, in which he demanded that 11,780 votes be found to overturn Biden’s victory in the state. SCOTUS’s decision did not explicitly rule on how to interpret Trump’s conversations with “a wide variety of state officials and private persons,” leaving that to McAfee to parse.
The Federal Election-Interference Case
Special counsel Jack Smith’s election-interference indictment charges Trump with four felony counts in a conspiracy to defraud the U.S., citing his actions on Jan. 6 and in the fake-electors scheme, which targeted seven states Trump lost to President Joe Biden. Trump’s attorneys have been insisting that the case be thrown out because the former president holds absolute immunity, an argument that U.S. District Court Judge Tanya Chutkan, the first to rule on the question, initially rejected. A three-judge panel of the U.S. Court of Appeals later rejected it too.
Trump’s defense team refused to let up and continued to appeal Chutkan’s decision until the case was taken up by the Supreme Court, and finally the former president hit the jackpot.
Before SCOTUS decision: Chutkan had placed this case on pause six months ago, until SCOTUS could rule on Trump’s presidential immunity appeal.
What’s next: Although Chutkan is tasked with going through Smith’s lengthy indictment and deciding which of Trump’s actions are official and unofficial, this is the one case for which the Supreme Court offered some swim lanes. Conversations Trump had with his DOJ are off the table for Smith to use to charge Trump or to submit as evidence, as are Trump’s actions to pressure Pence to reject states’ electoral votes. However, there’s still the larger fake-electors scheme, in which Trump and his attorneys worked across seven swing states to assemble fake electors to send in phony certificates to Congress that falsely certified Trump, not Biden, as the winner of the 2020 election. The court’s majority opinion failed to rule on how to interpret these actions, simply delegating lower courts to figure it out. “It’s hard to view that as anything more than stall and delay or catch and kill,” said Pollock—should Chutkan make a decision that goes against Trump, his defense team will almost certainly appeal. And the case could very well end up in front of SCOTUS again, this time in a much more narrow way.
Other experts predict that Trump’s defense team will argue that his actions around the fake-electors scheme were necessary election oversight and his discussions with state officials simply a way of ensuring that the election had been run appropriately.
Federal Classified Documents Case
Also spearheaded by Smith, this indictment charges Trump with 37 felony counts related to mishandling classified documents, obstructing justice, and making false statements. Trump’s personal aide Walt Nauta also faces charges in this indictment.
Before SCOTUS decision: Judge Aileen Cannon wiped the trial date for this case back in May, and since then, she has been slowly issuing orders and holding hearings to resolve a mountain of pretrial motions filed by Trump’s legal team.
What’s next: Trump’s lawyers have already filed a request with Cannon to review the classified documents case for official conduct that would be immune from prosecution. Smith has said that the Supreme Court’s immunity decision has no bearing on the classified documents indictment since the case deals with Trump’s actions after the presidency. Pollock agrees with the special counsel here. “There’s really no way that this should turn on official acts,” he noted. However, Cannon has been “extraordinarily sympathetic” to Trump’s defense, he said, so it’s hard to tell exactly how she’ll apply SCOTUS’s immunity decision.
Trump’s lawyers also filed a fresh motion arguing that Smith’s appointment as special counsel was illegal, a position that has gained steam from Justice Clarence Thomas’ concurring opinion stating that Smith’s appointment was invalid because there is “no law establishing the office that the Special Counsel occupies.” Cannon recently held four-hour hearing on this very topic but has yet to issue a decision.
Pollock asserts that, regardless of how Cannon rules, Trump’s defense team will file an interlocutory appeal—an appeal of a judge’s decision before a case goes to trial—to try to ultimately get Smith’s entire indictment dismissed. “I don’t doubt that the creative legal minds in the Trump team could come up with some idea of how to get this decision before the Supreme Court,” said Pollock. “They have a sympathetic judge, a relatively sympathetic appellate court, and a relatively sympathetic Supreme Court.”