To be clear, Chief Justice Roberts views acts like discussions with the Justice Department and Attorney General as covered by absolute immunity, not sending Seal Team 6 to assassinate the President’s political enemies.
Chief Justice Roberts then describes a second tier of immunity: “the Court concludes that the separation of powers principles explicated in the Court’s precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution. At a minimum, the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”
Using this reasoning, Chief Justice Roberts explains which allegations from Jack Smith’s January 6 indictment would fit under this tier; “The indictment next alleges that Trump and his co-conspirators ‘attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results’…[i]n particular, the indictment alleges several conversations in which Trump pressured the Vice President to reject States’ legitimate electoral votes or send them back to state legislatures for review.”
The Court continues; “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.” Therefore, “[t]he 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.”
However, in this instance, “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 in the first instance 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.”
With these words, Chief Justice Roberts creates a review process that will be necessary whenever a President invokes immunity. Courts will now be required to determine if the President’s actions are entitled to absolute immunity, or if there is only a presumption of immunity, a presumption which can be rebutted.
This is a crucial distinction to understand. If the President of the United States sends Seal Team 6 to assassinate a political rival, under a Tier Two analysis, perhaps the President might be entitled to a presumption of immunity, but such a presumption would be quickly rebutted by the facts. Meanwhile, if a President merely discusses sending Seal Team 6 to commit such a heinous act of political violence, that conversation would be immune from prosecution under Tier One.
The idea of a President discussing the use of military forces in such a way is clearly disagreeable to most reasonable minds. But discussion and debate of all options is a necessary element of any executive’s exercise of power. This is something Jack Smith has never accepted, and as described in my book. The Making of a Martyr, an Analysis of the Trump Indictments, Chapter 14, Smith has attempted to criminalize every discussion former President Trump ever had with his staff, the Justice Department and other elected officials that questioned whether there was voter fraud present in the 2020 election.
Smith’s indictment failed to describe whether Donald Trump’s actions were taken in his official capacity as President, whether those actions were presumptively immune. and what facts would rebut that presumption of immunity. Therefore, the indictment must be reviewed by the lower Court (federal judge Tanya Chutkin) who is to make these determinations. “On remand,” the Supreme Court states, “the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct.”
The third tier of analysis is very simply stated; “As for a President’s unofficial acts, there is no immunity. Although Presidential immunity is required for official actions to ensure that the President’s decisionmaking is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct…[t]he separation of powers does not bar a prosecution predicated on the President’s unofficial acts.”
Here again, remand for review by the lower court is necessary. For instance, “[t]he indictment also contains various allegations regarding Trump’s conduct in connection with the events of January 6 itself. The alleged conduct largely consists of Trump’s communications in the form of Tweets and a public address…[t]here may…be contexts in which the President speaks in an unofficial capacity – perhaps as a candidate for office or party leader..[w]hether 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.”
Can we expect Judge Chutkin to perform the necessary analysis of Jack Smith’s indictment in a fair and impartial fashion? Probably not. As is also described in The Making of a Martyr, at Chapter 16, Chutkin has previously blamed Donald Trump for the actions of the January 6 protestors she has sentenced to extensive jail terms. The likelihood that she will suddenly give the former President a fair hearing is low.
However, it is obvious that Jack Smith’s “January 6” indictment cannot go forward in its present form. For all intents and purposes, this indictment has now been rendered irrelevant.
Judge John H. Wilson (ret.) served on the bench in NYC
Photo: Pixabay