The Supreme Court’s decision on presidential immunity Monday made it more difficult for both special counsel Jack Smith and Fulton County District Attorney Fani Willis to prosecute former President Donald Trump, throwing their indictments into serious question.
The decision, which found former presidents are entitled to “at least presumptive immunity” from prosecution for all “official acts,” will force Smith to go back to the drawing board as Judge Tanya Chutkan weighs which portions of the indictment fall into that category and are covered by immunity.
The process not only means a trial before the election is a virtual impossibility, but paired with another ruling this term on the obstruction statute connected to two charges in the indictment, it likely will leave Smith with little more than a shell of a case.
“I think it could take several months for the trial court to decide what are official and unofficial acts,” University of California, Berkeley law professor and former President George W. Bush Department of Justice official John Yoo told the Daily Caller News Foundation. “Both sides must have a fair chance to research and argue the issue before the judge undertakes her analysis.”
When paired with the Fischer v. United States case, where the Supreme Court majority found the DOJ’s interpretation of an obstruction statute used to charge hundreds of Jan. 6 defendants and connected to two counts of Trump’s indictment too expansive, Yoo told the Daily Caller News Foundation there is “little left” of Smith’s case.
Yoo argued in a recent Fox News column President Joe Biden and Attorney General Merrick Garland would “be wise to shut down the special counsel investigation, blame its failures on the Supreme Court, and leave the question of Trump’s responsibility up to the people in November.”
John Malcolm, vice president for The Heritage Foundation’s Institute for Constitutional Government, told the Daily Caller News Foundation it is “very unclear” whether any viable charges “remain against Trump in either D.C. or Atlanta.”
“Judge Tanya Chutkan certainly has her work cut out for her,” he told the Daily Caller News Foundation.
The Fischer ruling alone makes it “hard to see” how the two charges alleging Trump “obstructed, attempted to obstruct, and conspired to obstruct an official proceeding” will survive, he said.
“As to the immunity decision, the court essentially ordered Chutkan to dismiss all charges pertaining to Trump’s conversations with Justice Department officials, and made clear that he would also enjoy immunity for any actions he undertook while in office that were within the ‘outer perimeter’ of his authority as president,” Malcolm continued.
The case was on hold for months as Trump’s appeal was pending before the Supreme Court, forcing Chutkan to cancel the initially scheduled March 4 trial date. While a trial almost certainly won’t be rescheduled before the election, it’s possible that Chutkan will schedule a public hearing on the immunity issue in the coming month that enables prosecutors to present some of their evidence against Trump, The New York Times reported Monday.
The immunity ruling impacts more than the federal election interference case brought by Smith: it impacts every one of Trump’s criminal cases.
Though it’s already on hold while Trump and his co-defendants seek to disqualify Willis over her “improper” relationship with the special prosecutor she appointed, the immunity ruling likewise spells bad news for her case against Trump in Georgia.
“The [immunity] holding applies to all cases, so it would require that state DAs survive the same test that they are prosecuting a president for non-official acts,” Yoo told the Daily Caller News Foundation.
As for Smith’s Florida classified documents case, Malcolm explained that the “removal of some of the documents in question from the White House may be deemed [an] official act.”
“This will also present a problem for special counsel Jack Smith, assuming that the judge does not rule that the case should be dismissed altogether because his appointment to the position violated the appointments clause and was, therefore, unconstitutional,” he said.
In a concurring opinion, Justice Clarence Thomas questioned the constitutionality of Smith’s appointment, writing he is “not sure that the office for Special Counsel has been ‘established by Law,’ as the Constitution requires.”
“If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution,” Thomas wrote. “A private citizen cannot criminally prosecute anyone, let alone a former President.”
Judge Aileen Cannon recently held hearings in Florida to consider the issue.
The immunity decision has already had an impact on Trump’s Manhattan case, where a jury convicted him in May on 34 counts of falsifying business records. Judge Juan Merchan agreed Tuesday to move Trump’s sentencing date from July to September after his attorneys argued the ruling means the verdict should be set aside.