After Supreme Court 'absolute immunity' ruling, Trump’s Jan. 6 trial now hinges on whether these 5 acts were 'official' or 'unofficial'
The U.S. Supreme Court ruled Monday that former President Donald Trump is entitled to immunity from prosecution for "official acts" taken during his presidency. But in a 6-3 decision along ideological lines, the court also ruled that he does not have immunity for his "unofficial acts" — and that not everything a president does can be considered official, as Trump had claimed.
“The President enjoys no immunity for his unofficial acts, and not everything the President does is official,” Chief Justice John Roberts wrote in the majority opinion. “The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts.”
A lower court had rejected Trump's claim of immunity from federal charges brought by special counsel Jack Smith over the former president’s efforts to reverse the results of the 2020 election, which he lost to Joe Biden.
In its ruling, the Supreme Court cited several allegations from Smith’s indictment that it considers “official” acts, including Trump’s conversations with Justice Department officials and with Vice President Mike Pence, who was overseeing congressional certification of the 2020 election when Trump supporters attacked the U.S. Capitol on Jan. 6, 2021.
At the same time, the court said that the key to “deciding whether a former President is entitled to immunity from a particular prosecution” is “to distinguish his official from unofficial actions” — and for official acts, to show that prosecution would not intrude on “the independence and effective functioning of the Executive Branch.”
The court also said the president's motives cannot be examined in determining whether acts are official or unofficial.
"In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such a 'highly intrusive' inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose," the court wrote.
The job of making such distinctions — at least initially — now falls to Judge Tanya Chutkan of the U.S. District Court in Washington, D.C., who is overseeing the case. The process will further delay a trial that was scheduled to start on March 4. If Trump wins reelection before the trial concludes, he could order the Justice Department to dismiss the charges against him.
Here’s a guide to Trump’s acts leading up to the Jan. 6 riot, as outlined in Smith’s indictment — and what the Supreme Court said about them in its historic ruling.
1) Pushing the Justice Department to endorse false claims of election fraud
What the indictment alleges: After losing the 2020 election to Joe Biden, Trump pressured former acting Attorney General Jeffrey Rosen and other senior Justice Department officials to send a letter to key swing states falsely claiming that the department had "identified significant concerns that may have impacted the outcome of th[eir] election” and urging state officials to convene special legislative sessions for the purpose of choosing fraudulent electors who would support Trump.
When the Justice Department refused and responded that “despite dramatic claims to the contrary, we have not seen the type of fraud that calls into question the reported (and certified) results of the election,” Trump threatened to (and ultimately attempted to) replace Rosen with a loyalist who would send the letter, relenting only when told that such a move “would result in mass resignations at the Justice Department and of his own White House Counsel.”
What the Supreme Court said: “The Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. And the President’s ‘management of the Executive Branch’ requires him to have ‘unrestricted power to remove the most important of his subordinates’ — such as the Attorney General — ‘in their most important duties.’
The indictment’s allegations that the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”
2) Pressuring Vice President Mike Pence to change the election results
What the indictment alleges: Between Dec. 25, 2020, and Jan. 3, 2021, Trump spoke to Pence at least four times about what Trump falsely characterized as “major infractions” uncovered by the Justice Department. During these conversations, Trump insisted that Pence should use his ceremonial role at Congress’s election-certification proceeding on Jan. 6 to reject legitimate electoral votes and gavel in Trump as the winner. Pence said that he did not have that authority, citing recent court rulings. In response, Trump told Pence, "You're too honest."
Trump then urged his supporters to travel to Washington, D.C. on Jan. 6, repeatedly telling them that the fate of his presidency was in Pence’s hands. At one point, Trump tried to get a U.S. Senator to pass false slates of electors to Pence’s staff. “If Mike Pence does the right thing,” Trump told the crowd that gathered at his “Stop the Steal” rally on Jan. 6, “we win the election.”
Official or unofficial? What the Supreme Court said: “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.
The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to the District Court to assess [initially] whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.”
3) Lobbying officials in certain swing states that broke for Biden to ignore the results and take steps to make Trump the winner — and
4) when that failed, organizing slates of 'fake electors' to falsely certify that Trump had won
What the indictment alleges: Starting on Nov. 14, 2020, Trump and six co-conspirators — including attorneys Rudy Giuliani, John Eastman, Sidney Powell and Kenneth Chesebro, as well as former Justice Department official Jeffrey Clark — “executed a strategy to use knowing deceit in the targeted states to impair, obstruct, and defeat” Biden’s Electoral College victory and to keep Trump in office.
In the process, Trump and his co-conspirators deliberately spread lies about election fraud as they “pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors” for Trump in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin — all states Biden had won.
Official or unofficial? What the Supreme Court said: “On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. As the Government sees it, however, Trump can point to no plausible source of authority enabling the President to take such actions. Determining whose characterization may be correct, and with respect to which conduct, requires a fact-specific analysis of the indictment’s extensive and interrelated allegations. The Court accordingly remands to the District Court to determine [initially] whether Trump’s conduct in this area qualifies as official or unofficial.”
5) Exploiting the violent riot on Jan. 6 to try to keep lawmakers from confirming Biden’s victory
What the indictment alleges: After Pence issued a statement on Jan. 6 saying that he did not have "unilateral authority to determine which electoral votes should be counted and which should not," a large crowd of Trump supporters — who Trump had “deceived into believing” otherwise — attacked the U.S. Capitol and halted the certification proceeding.
“Fraud breaks up everything, doesn't it?” Trump said during his “Stop the Steal” speech. “When you catch somebody in a fraud, you're allowed to go by very different rules."
“We fight,” he continued. “We fight like hell. And if you don't fight like hell, you're not going to have a country anymore.”
Watching on TV from the White House, Trump then spent hours refusing his advisers’ recommendations to “issue a calming message aimed at the rioters,” choosing instead to tweet that "Mike Pence didn't have the courage to do what should have been done” and that “these are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long.”
Later that evening, Trump and one of his co-conspirators again started calling “lawmakers to convince them, based on knowingly false claims of election fraud, to [further] delay the certification.”
Official or unofficial? What the Supreme Court said: “The alleged conduct largely consists of Trump’s communications in the form of Tweets and a public address. The President possesses ‘extraordinary power to speak to his fellow citizens and on their behalf.’ So most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.
There may, however, be contexts in which the President speaks in an unofficial capacity — perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of ‘content, form, and context’ will necessarily inform the inquiry. Whether the communications alleged in the indictment involve official conduct may depend on the content and context of each. This necessarily factbound analysis is best performed initially by the District Court. The Court therefore remands to the District Court to determine in the first instance whether this alleged conduct is official or unofficial.”
