WHAT’S REALLY GOING ON HERE?

WAS TRUMP'S CLAIM OF ABSOLUTE IMMUNITY A FAKE MOVE TO SET UP A QUARTERBACK SNEAK TO THE SUPREME COURT FOR A NEW IMMUNITY RULE JUST COVERING "OFFICIAL" CRIMES? PLAY IS SUSPENDED FOR REPLAY REVIEW.

Democrats, the Department of Justice prosecutors, and “Never Trumpers” everywhere were moved to celebrate when a District of Columbia Circuit Court Justice probing the former President’s appeal of the District Court denial of his extremely broad claims of immunity from Special Counsel Jack Smith’s four count criminal indictment apparently induced Trump’s legal counsel to make a shocking and damaging admission. He was in effect forced to concede that Trump’s absolute immunity claims meant that, if a president used his official powers to order Seal Team Six to assassinate a political opponent, he would never face criminal trial for that act. When pressed, Trump’s attorney finally specifically answered her question about whether such conduct was covered by Trump’s absolute immunity claim with “a qualified yes” – that is, unless Trump had been previously impeached and convicted by the Senate (another of Trump’s categorical assertions of presidential immunity readily dismissed by both the District Court and the Court of Appeals). Unsurprisingly, The Circuit Court of Appeals held that former presidents have no absolute immunity from criminal prosecution. https://www.cadc.uscourts.gov/internet/opinions.nsf/1AC5A0E7090A350785258ABB0052D942/$file/23-3228-2039001.pdf

When the Trump legal team asked the Supreme Court for an emergency order on February 12 to freeze the appellate Court’s decision to reject  Trump’s assertions of immunity  and return the case to the District Court for trial, many observers speculated that the Supreme Court might choose not to do so and simply affirm the unanimous opinion of the appellate panel. Some were surprised, however, by the somewhat leisurely pace taken by the Justices in their review of Trump’s petition,  speculating that there could be a surprising and serious disagreement among the Justices over what should be an “open and shut case” of affirming that no president is “above the law.” by virtue of absolute immunity for actions in office that violate the criminal laws of the land. There was in some quarters palpable shock when the Supreme Court after sixteen days issued a one-page unsigned order granting certiorari to review the Appeals Court’s decision and effectively granting the former President’s request by freezing the case in its tracks.  https://www.politico.com/news/2024/02/28/supreme-court-trump-immunity-00143985

As it turns out, what is really going on here is a case where Trump’s legal team’s series of “red herrings” asserting unlimited immunity were obscuring the most fundamental issue at hand. Trump does not need a holding that he enjoys absolute  immunity as former President to escape prosecution under the Justice Department’s indictment. He can prevail with even a sliver of qualified immunity, so long as it is broad enough to apply to all the conduct that the indictment cites as violations of federal criminal statutes.

The Circuit Court of Appeals holding that former presidents have no absolute immunity from criminal prosecution does not establish that ex- presidents have absolutely no other, more limited, form of immunity. The brief order issued by the Supreme Court granting certiorari to hear the case  focused directly on this gap in perception, specifically limiting in advance the Court’s consideration upon review to the following (somewhat leading)  question: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. Without expressing a view on the merits, this Court directs the Court of Appeals to continue withholding issuance of the mandate until the sending down of the judgment of this Court. The application for a stay is dismissed as moot.”  Order List : 601 US, 23-939 (23A745),  Trump, Donald J. V. United States, Miscellaneous Order 02/28/2024. (Emphasis added.)

The Supreme Court in the tumultuous late 1960’s invented the concept of “qualified immunity” for police officers for actions in the course of their official duties to enforce “law and order.” Since that time, the Roberts Court in particular has significantly broadened the scope of that initial grant into a substantial  safe harbor for aggressive policing practices.

“When the Supreme Court created qualified immunity, in 1967, it was meant to shield officers from liability only if they were acting in “good faith” when they violated the Constitution. Yet the Court has repeatedly strengthened the doctrine. In 1982, the Court ruled that requiring officers to prove good faith was too much of a burden. Instead, they would be entitled to qualified immunity so long as they did not violate ‘clearly established law.’ Over the years, what constitutes ‘clearly established law’ has constricted. The Roberts Court, invoking the importance of qualified immunity to ‘society as a whole,’ has emphasized that the law is “clearly established’ only if a court has previously found nearly identical conduct to be unconstitutional. What began as a protection for officers acting in good faith has turned into a protection for officers with the good fortune to have violated the Constitution in a novel way.” https://www.theatlantic.com/ideas/archive/2023/01/police-misconduct-consequences-qualified-immunity/672899/

Even more pertinently, the Court also has held that a provisional immunity from civil damages suits exists for former presidents – provided that the conduct underlying the relevant indictment fits at least within the “outer perimeter” of their official responsibilities. The Trump legal team urged the District and Circuit Courts to adopt this relatively extensive but still “qualified” immunity in his case. As discussed below, the lower courts also dismissed that argument categorically. A sufficient number of Justices on the Supreme Court, however, apparently were not satisfied with that reasoning and want to decide for themselves whether an analogous form of that “outermost reaches” standard or something like it should apply to Jack Smith’s indictment of Trump. Few observers expect the Court to grant Trump absolutely immunity from prosecution, and it seems from their framing of the issue to be argued on April 22 that they are interested in a narrower yet very powerful alternative.  Not many heretofore thought through to the possibility that the Court could create a pathway to a form of qualified immunity that would provide Trump all he needs to totally avoid a trial.

The Supreme Court has put itself in a position not simply to “runout the clock” in the course of its own process until the very end of its current term in late June, which not matter what they decide about the “extent” of immunity could provide Trump a de facto temporal immunity from trial and possible conviction before the November presidential election. “This case is just as important, probably more important, than the Pentagon Papers case, or the [Watergate] tapes case,” Fred Wertheimer, president of the nonprofit watchdog group Democracy 21, said Wednesday. “If they wait and issue the opinion at the end of the term in June, they likely will have knowingly prevented voters from knowing if Trump is a convicted felon before they vote. They will have rewarded Trump’s delaying strategy at the enormous expense of the country and the Supreme Court.” https://www.washingtonpost.com/politics/2024/02/29/democrats-legal-experts-supreme-court-trump-immunity/?itid=mr_politics_

A Supreme Court majority, however,  could go further and invent a new qualified form of  immunity for ex-presidents in criminal cases, and set a new standard of eligibility requiring the lower courts to pause the trial schedule to rule on that standards applicability to the Indictment charges, thereby creating another round of upstream appeals and providing candidate Trump a virtually certain delay of any trial until after November, if there ever is any trial at all. The Court is silently affirming lower Court decisions rejection the multiple specious  claims of absolute immunity advanced by the Trump team, but meanwhile undertaking a technically “expedited” (they could have waited until October)  but practically “extended”  do-over on the question of whether there might be a partial form of immunity tied to the president’s official duties.

On the face of it, the current state of the case squares with the overall Trump legal (and political) strategy to “delay, deflect, and mis-direct” --  Jack Smith gets the easy win on the absurdly broad immunity claims, while the core strategy is playing to win “just enough” qualified  immunity to deny the prosecutor a trial on the merits.

The Trump claim of full immunity based on the Impeachment clause of the Constitution, it should be noted, should have made clear that the Trump claim of absolute immunity for all his actions as President was never serious, or indeed  “absolute.” It was in fact inherently self-contradictory. The Founding Father Alexander Hamilton had made clear in his writings that a president impeached and convicted for conduct in office would remain subject to criminal prosecution once out of office. Conviction on impeachment, to put it another way, was not to be considered a grant of criminal immunity after office for the same conduct. Trump’s legal team did not challenge that interpretation before the Circuit Court of Appeals (despite it being clear exception to any absolute immunity claim). “Even former President Trump concedes that criminal prosecution of a former President is expressly authorized by the Impeachment Judgment Clause after impeachment and conviction. e.g., Oral Arg. Tr. 13:25– 14:9. We presume that every President is aware of the Impeachment Judgment Clause and knows that he is ‘liable and subject to Indictment, Trial, Judgment and Punishment, according to Law,’ at least after impeachment and conviction. U.S. CONST. art. I, § 3, cl.” https://www.cadc.uscourts.gov/internet/opinions.nsf/1AC5A0E7090A350785258ABB0052D942/$file/23-3228-2039001.pdf, p. 33

The Trump lawyers also unsuccessfully attempted to turn Hamilton’s statement inside out, arguing that they must today mean that a former president cannot face criminal trial for conduct unless he had previously been impeached and convicted for it. This bent immunity claim was always legally specious, and the appellate Court quickly disposed of it: “It strains credulity that Hamilton would have endorsed a reading of the Impeachment Judgment Clause that shields Presidents from all criminal accountability unless they are first impeached and convicted by the Congress.” Ibid. p. 47.

Equally legally absurd was Trump’s additional claim of full criminal immunity based on his supposedly being placed by Smith’s indictment in Constitutionally impermissible “double jeopardy” arising out of the Senate’s prior decision not to convict him on impeachment for inciting an insurrection. Impeachment does not involve or trigger criminal jeopardy in terms of any risk of fines or loss of personal liberty. (One cannot be in criminal double jeopardy without one occasion of actual jeopardy to begin with.)  The Constitution does not even contemplate a possibility that mere exposure to conviction in a Senate trial automatically conveys a forever “get out of jail free” card to a successful impeachment defendant.

Moreover, the charges in Jack Smith’s four-part indictments of Trump were not the same as the single count expressed in the post-January 6 impeachment resolution adopted by the House of Representatives.

“A District of Columbia federal grand jury indicted former President Trump on four criminal counts arising from the steps he allegedly took to change the outcome of the election: (1) conspiracy to defraud the United States by overturning the election results, in violation of 18 U.S.C. § 371; (2) conspiracy to obstruct an official proceeding — i.e., the Congress’s certification of the electoral vote — in violation of 18 U.S.C. § 1512(k); (3) obstruction of, and attempt to obstruct, the certification of the electoral vote, in violation of 18 U.S.C. §§ 1512(c)(2), 2; and (4) conspiracy against the rights of one or more persons to vote and to have their votes counted, in violation of 18 U.S.C. § 241….” Ibid. p. 4.

“Then-President Trump’s efforts to overturn the election results were unsuccessful and the Congress certified the Electoral College vote in favor of President-Elect Biden. Indictment ¶ 123. On January 11, 2021, nine days before President-Elect Biden’s inauguration, the House of Representatives adopted an impeachment resolution charging then-President Trump with ‘Incitement of Insurrection.’ H.R. Res. 24, 117th Cong. (2021). The single article of impeachment alleged that he had violated ‘his constitutional oath faithfully to execute the office of President of the United States . . . [and] his constitutional duty to take care that the laws be faithfully executed . . . by inciting violence against the Government of the United States.’ Id. at 2.” Ibid. p. 6.

Trump’s lawyers, however, were careful to also assert along with their various broad immunity claims that a former president must also have criminal immunity for any and all “official actions” as a “functional” condition to assure that all presidents while in office are able to carry out the duties of the office with boldness and without fear of subsequent reprisal by politically motivated prosecutors.

“…Trump argues that criminal liability for former Presidents risks chilling Presidential action while in office and opening the floodgates to meritless and harassing prosecution. These risks do not overcome ‘the public interest in fair and accurate judicial proceedings,’ which ‘is at its height in the criminal setting.’ Vance, 140 S. Ct. at 2424. Former President Trump first asserts that the prospect of potential post-Presidency criminal liability would inhibit a sitting President’s ability to act ‘fearlessly and impartially,’ citing the ‘especially sensitive duties’ of the President and the need for ‘bold and unhesitating action.’ Ibid. p. 32.

‘Trump next urges that a lack of criminal immunity will subject future Presidents to politically motivated prosecutions as soon as they leave office. In the civil context, the Supreme Court found official-act Presidential immunity necessary in part to avoid ‘subject[ing] the President to trial on virtually every allegation that an action was unlawful, or was taken for a forbidden purpose.’ Fitzgerald, 457 U.S. at 756; see id. at 753 (‘In view of the visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages.’)’ Ibid. pp. 34-35.

The Circuit Court of Appeals clearly did not agree with such a categorical claim for absolute immunity. “On the other side of the scale, we must consider ‘the constitutional weight of the interest to be served’ by allowing the prosecution of a former President to proceed. Fitzgerald, 457 U.S. at 754. The public has a fundamental interest in the enforcement of criminal laws. Vance, 140 S. Ct. at 2424. “[O]ur historic commitment to the rule of law . . . is nowhere more profoundly manifest than in our view that ‘the twofold aim (of criminal justice) is that guilt shall not escape or innocence suffer.’” Nixon, 418 U.S. at 708–09 (quoting Berger v. United States, 295 U.S. 78, 88 (1935).” Ibid p. 35.

 “As the Nixon Court explained, wholly immunizing the President from the criminal justice process would disturb “the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions” to such an extent that it would undermine the separation of powers by ‘plainly conflict[ing] with the function of the courts under Art. III.’ Nixon, 418 U.S. at 707….It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity.” Ibid. at pp. 35-37.

The Court of Appeals, moreover, directly confronted and dismissed Trump’s claim to be entitled as former President to the equivalent level of immunity from criminal prosecution for his actions while in office as the Supreme Court has previously established in terms of civil liability.

“The question of whether a former President enjoys absolute immunity from federal criminal liability is one of first impression. See Blassingame, 87 F.4th at 5 (noting the unresolved question of ‘whether or when a President might be immune from criminal prosecution’). The Supreme Court has consistently held that even a sitting President is not immune from responding to criminal subpoenas issued by state and federal prosecutors. See Trump v. Vance, 140 S. Ct. 2412, 2431 (2020); Nixon, 418 U.S. at 706; United States v. Burr, 25 F. Cas. 30, 33–34 (C.C. Va. 1807) (Marshall, C.J.). In the civil context, the Supreme Court has explained that a former President is absolutely immune from civil liability for his official acts, defined to include any conduct falling within the ‘outer perimeter’ of his official responsibility.” Fitzgerald, 457 U.S. at 756. Ibid. p 19. (Emphasis added.)

Although the appellate Court here used the term “absolute” regarding such civil immunity, the fact is that legally such immunity is more limited than that. It is “qualified” by the accompanying definitional standard limiting its applicability solely to conduct at least within the so-called “outer perimeter” of presidential duties. The appellate Justices went on to reject, through over 20 pages of detailed analysis, the Trump team’s arguments for such a limited but powerful  form of presidential immunity, including by analogy to the qualified civil immunity. Here are some highlights of their point-by-point discussion:

“When considering the issue of Presidential immunity, the Supreme Court has been careful to note that its holdings on civil liability do not carry over to criminal prosecutions. See Fitzgerald, 457 U.S. at 754 n.37 (explaining the “lesser public interest in actions for civil damages than, for example, in criminal prosecutions”); cf. Clinton, 520 U.S. at 704 n.39 (noting special considerations at issue in criminal cases). Former President Trump’s claimed immunity would have us extend the framework for Presidential civil immunity to criminal cases and decide for the first time that a former President is categorically immune from federal criminal prosecution for any act conceivably within the outer perimeter of his executive responsibility.” Ibid. p. 19.

“Our analysis is ‘guided by the Constitution, federal statutes, and history,’ as well as ‘concerns of public policy.’  Fitzgerald, 457 U.S. at 747. Relying on these sources, we reject all three potential bases for immunity both as a categorical defense to federal criminal prosecutions of former Presidents and as applied to this case in particular….‘It is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States.’ Fitzgerald, 457 U.S. at 753–54; see also Nixon, 418 U.S. at 706 (separation of powers doctrine cannot ‘sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances’).” Ibid. p. 20.

“Our conclusion that the separation of powers doctrine does not immunize former Presidents from federal criminal liability is reinforced by the analogous immunity doctrines for legislators and judges. Legislators and judges are absolutely immune from civil suits for any official conduct, and legislators have an explicit constitutional immunity from criminal prosecution arising from the Speech or Debate Clause. Nevertheless, legislators and judges can be criminally prosecuted under generally applicable laws for their official acts consistent with the separation of powers doctrine. Legislators have explicit constitutional immunity from criminal or civil liability ‘for what they do or say in legislative proceedings’ under the Speech or Debate Clause. Tenney v. Brandhove, 341 U.S. 367, 372 (1951); see U.S. CONST. art. I, § 6, cl. 1. But outside of constitutionally protected legislative conduct, members of the Congress perform a wide range of ‘acts in their official capacity’ that are not ‘legislative in nature’ and so can subject them to criminal liability.” Ibid. pp. 25-26.

“We therefore conclude that Article III courts may hear the charges alleged in the Indictment under the separation of powers doctrine, as explained in Marbury and its progeny and applied in the analogous contexts of legislative and judicial immunity. The Indictment charges that former President Trump violated criminal laws of general applicability. Acting against laws enacted by the Congress, he exercised power that was at its ‘lowest ebb.’ Youngstown, 343 U.S. at 637 (Jackson, J., concurring). Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.’” Ibid. p. 30.

“Former President Trump argues that criminal liability for former Presidents risks chilling Presidential action while in office and opening the floodgates to meritless and harassing prosecution. These risks do not overcome ‘the public interest in fair and accurate judicial proceedings,’ which ‘is at its height in the criminal setting.’” Vance, 140 S. Ct. at 2424. Ibid. p. 32.

“Additionally, recent historical evidence suggests that former Presidents, including President Trump, have not believed themselves to be wholly immune from criminal liability for official acts during their Presidency. President Gerald Ford issued a full pardon to former President Richard Nixon, which both former Presidents evidently believed was necessary to avoid Nixon’s post-resignation indictment….Before leaving office, President Bill Clinton agreed to a five-year suspension of his law license and a $25,000 fine in exchange for Independent Counsel Robert Ray’s agreement not to file criminal charges against him….And during President  Trump’s 2021 impeachment proceedings for incitement of insurrection, his counsel argued that instead of post-Presidency impeachment, the appropriate vehicle for ‘investigation, prosecution, and punishment’ is ‘the article III courts,’ as ‘[w]e have a judicial process’ and an investigative process . . . to which no former officeholder is immune.’ 167 CONG. REC. S607 (daily ed. Feb. 9, 2021); see also id. at S693 (daily ed. Feb. 12, 2021) (‘[T]he text of the Constitution . . . makes very clear that a former President is subject to criminal sanction after his Presidency for any illegal acts he commits.’).”   Ibid. pp. 33-34.

“There is also a profound Article II interest in the enforcement of federal criminal laws. The President has a constitutionally mandated duty to ‘take Care that the Laws be faithfully executed.’ U.S. CONST. art. II, § 3. As part of this duty, the President is responsible for investigating and prosecuting criminal violations. See Morrison v. Olson, 487 U.S. 654, 706 (1988) (Scalia, J., dissenting) (‘Governmental investigation and prosecution of crimes is a quintessentially executive function.’); see also In re Lindsey, 158 F.3d 1263, 1272 (D.C. Cir. 1998) (‘Investigation and prosecution of federal crimes is one of the most important and essential functions within [the President’s] constitutional responsibility.’); Cmty. For Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986) (‘The power to decide when to investigate, and when to prosecute, lies at the core of the Executive’s duty to see to the faithful execution of the laws . . . .’). Beyond simply making explicit that a President must enforce the law, the Take Care Clause plays a central role in ‘signify[ing] . . . the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.’ Youngstown, 343 U.S. at 646 (Jackson, J., concurring).” Ibid. p. 36.

“It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity.” Ibid. pp. 36-37. (Emphasis supplied.)

“At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, ‘not in derogation of the separation of powers, but to maintain their proper balance.’” Ibid. pp. 40-41. (Emphasis supplied.)

In summarizing its overall holding, moreover, the unanimous Circuit Court of Appeals panel did not limit itself to rejecting only Trump’s multiple “red herring” assertions of absolute immunity for former presidents from criminal prosecutions. It specifically addressed and rejected (to the apparent consternation of some Supreme Court Justices) the Trump team’s effort to extend the existing qualified immunity available to ex-presidents in civil cases to an all-encompassing exemption from prosecution for even patently criminal conduct if the acts alleged might be arguable within the outer edge of presidential duties:

“We have balanced former President Trump’s asserted interests in executive immunity against the vital public interests that favor allowing this prosecution to proceed. We conclude that ‘[c]oncerns of public policy, especially as illuminated by our history and the structure of our government’ compel the rejection of his claim of immunity in this case. See Fitzgerald, 457 U.S. at 747–48. We also have considered his contention that he is entitled to categorical immunity from criminal liability for any assertedly ‘official’ action that he took as President — a contention that is unsupported by precedent, history or the text and structure of the Constitution. Finally, we are unpersuaded by his argument that this prosecution is barred by ‘double jeopardy principles.’ Accordingly, the order of the district court is AFFIRMED.” Ibid. p. 57.

Enough Justices of the Supreme Court were not persuaded that enough attention had been paid to the possibility of a more limited, civil-type immunity applicable to official acts, or to whether the conduct cited in the indictment would conceivably fit within the “outer perimeter” of the president’s official capacities if that standard were to apply in criminal cases. Because neither the District Court nor the Circuit Court of Appeals accepted any such qualified grounds for presidential immunity for crimes in office, they of course did not address or decide the latter question. The Supreme Court has seized that void for its own purposes for the moment. The High Court’s unsigned order artfully recast elements the Court of Appeal’s holding (bolded above) to reflect the only question it cares about at this point: “Whether and if so to what extent” such a qualified immunity can apply, and by inference, by what standard would it be defined? For example, would the immunized conduct have to fit within the “outer perimeter” of presidential responsibilities; would just the ‘lowest ebb’ of presidential power suffice; or would some other, yet to be invented framework, be preferable?

If the Supreme Court decides to adopt a new qualified immunity for ex-presidents in terms of criminal liability for their arguably official acts, how would Jack Smith’s indictment fare under the standards described above. Smith identified five specific sets of actions of Trump and his co-conspirators underlying his four counts:

--“First, they ‘used knowingly false claims of election fraud’ to attempt to persuade state legislators and election officials to change each state’s electoral votes in former President Trump’s favor. Indictment ¶ 10(a). For example, he and his allies falsely declared ‘that more than ten thousand dead voters had voted in Georgia’; ‘that there had been 205,000 more votes than voters in Pennsylvania’; ‘that more than 30,000 noncitizens had voted in Arizona’; and ‘that voting machines . . . had switched votes from [Trump] to Biden.’ Id. at ¶ 12.”

--"Second, then-President Trump and his co-conspirators ‘organized fraudulent slates of electors in seven targeted states . . . attempting to mimic the procedures that the legitimate electors were supposed to follow.’ Indictment ¶ 10(b). They ‘then caused these fraudulent electors to transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6.’ Id.”

--"Third, then-President Trump and his co-conspirators pressed officials at the Department of Justice ‘to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome.’ Indictment ¶ 10(c).”

--"Fourth, then-President Trump and his co-conspirators attempted to convince then-Vice President Mike Pence to ‘use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.’ Indictment ¶ 10(d). When the Vice President rebuffed them, he stirred his base of supporters to increase pressure on the Vice President. See id. at ¶¶ 10(d), 96, 100. Ultimately, on the morning of January 6, 2021, he held a rally in Washington D.C. where he ‘repeated knowingly false claims of election fraud to gathered supporters’ and ‘directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused.’ Id. at ¶¶ 10(d), 90(c).

--'Fifth, and finally, from the January 6 rally, thousands of his supporters — ‘including individuals who had traveled to Washington and to the Capitol at [his] direction’ — swarmed the United States Capitol, causing ‘violence and chaos’ that required the Congress to temporarily halt the election certification proceeding. Indictment ¶¶ 107, 119, 121. At that point, he and his co-conspirators ‘exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification. Id. at ¶ 10(e).” Ibid.  pp. 5-6.

The powers and duties of the president are basically set forth in Article II of the Constitution. On first look, only the Third set of actions cited by Jack Smith might remotely be connected to official executive responsibilities, and that would be ‘[o]nly the tiniest slice of the indicted conduct [that]could bear a straight-faced description as an ‘official act,’ as one commentator (Professor Leo Kovarsky, University of Texas School of Law put it. https://www.nytimes.com/2024/02/29/opinion/supreme-court-trump-immunity.html

“It has already been determined — in a recent decision in a civil case, by a separate D.C. Circuit panel — that Mr. Trump’s extramural efforts to remain in office were not ‘official acts.’ The D.C. Circuit opinion now subject to review in the Supreme Court expressly cited Mr. Trump’s failed civil immunity claim as a reason to be ‘doubtful’ that the former president could meet the official acts standard in the criminal prosecution. Mr. Trump was acting as an ‘officeseeker’ rather than an ‘officeholder,’ and the private sphere of office-seeking conduct sits outside the scope of official-acts immunity.” Ibid.

The Justice Department could drop the Third allegation from the case to avoid an “official act” controversy and thereby also compress the already delayed trial schedule. Otherwise as to the other conduct charged in Smith’s indictment, nothing in the Constitution empowered then-President Trump to intervene in state election administration or Electoral College formation as charged in the First and Second allegation by Jack Smith. Nor did then-President Trump, in connection with the actions charged in Smith’s Fourth and Fifth allegations, have any official or even ceremonial role in connection with the required January 6, 2021, Congressional certification of the Electoral Vote count and the opening and announcing of those Votes by the Vice President.

At the end of the day, however, will Jack Smith have enough time before November 5 to win those arguments in court if the Supreme Court moves to impose a new standard for defining the “extent” of presidential immunity from criminal charges for conduct alleged to constitute some form of official presidential acts?

One possibility suggests all is not yet lost in terms of prosecuting the case against Trump well before the election. Note that in its one-page order, the Supreme Court did not actually grant Trump’s request for an emergency stay of the Court of Appeals decision and order to proceed with the trial. Rather, it literally dismissed Trump’s emergency request as moot because the Court chose to grant certiorari, as Special Counsel Jack Smith had suggested as an alternative course (although its extended Smith’s prosed scheduled to argument by a month).

Apart from the irony of Trump getting his wish via Smith’s proposal, note that a grant of certiorari requires only 4 Justices to agree, whereas the grant of an emergency stay like Trump requested usually requires 5. Perhaps the 16 days it took to issue the order involved an internal quest for a fifth vote that never materialized; perhaps there is yet to be a 5-vote majority in place on the Court to overrule the Circuit Court of Appeals on the “official acts” question and thereby further delay the trial. Are there one or two Justices’ votes still in play?

For more clues, we await the audio broadcast of the Supreme Court hearing of Trump v. United States on April 22. It may say more about the State of the Union than the current President’s third speech on that topic on March 7.