If the Supreme Court rules that Donald J. Trump is immune from being charged with crimes over official actions he took as president, it would be a momentous decision for the future of executive power and American-style democracy.
But it is far from certain that such a ruling would derail the election subversion case against him. In fact, there is a scenario in which the court could render such a ruling without altering the charges or the array of evidence that the special counsel, Jack Smith, wants to present to a jury.
Mr. Trump faces four criminal counts over his efforts to overturn his loss of the 2020 election, but none are exclusively centered on conduct Mr. Trump undertook in his capacity as president. Rather, the indictment tells a story that mixes both official acts with private ones, meaning actions Mr. Trump took in his role as a candidate for office. It then declares that each charge arises from the entire picture.
Among the accusations: Mr. Trump spread false claims of voter fraud, plotted to recruit false slates of electors from swing states, pressured Vice President Mike Pence to use their existence to block Congress’s certification of Joseph R. Biden Jr.’s Electoral College victory, and urged lawmakers to use the attack on the Capitol by his supporters to delay any vote.
As of yet, no court has decided which of Mr. Trump’s actions are considered official presidential conduct, versus private, unofficial campaign activity. But during oral arguments before the Supreme Court on Thursday, Justice Amy Coney Barrett floated the possibility that Mr. Smith could “just proceed based on the private conduct and drop the official conduct.”
Crucially, however, a lawyer for Mr. Smith, Michael R. Dreeben, said that even if the court ruled out basing charges on Mr. Trump’s official actions, prosecutors believed that they could still lawfully present evidence about the official conduct as relevant context that would help jurors understand Mr. Trump’s private acts.
“There’s really an integrated conspiracy here that had different components,” Mr. Dreeben said. Mr. Trump, he added, used his official powers to try to ensure his private efforts to overturn the election were more likely to succeed, and the jury will need to see the entire picture to understand the sequence, why each step occurred and the gravity of the conduct.
Mr. Dreeben added that the facts of Mr. Trump’s official acts are relevant for interpreting his “knowledge and intent” about his private conduct.
A lawyer for Mr. Trump, D. John Sauer, urged the court to adopt a very different remedy. Not only should it find that Mr. Trump had immunity for his official actions, he said, but it should omit them from the case. Still, he acknowledged that Mr. Trump could be charged over private actions while he was president.
“The official stuff has to be expunged completely from the indictment before the case can go forward,” Mr. Sauer maintained.
But instead of eliminating any mention of official acts from the case, Mr. Dreeben said, the judge should simply instruct the jurors that they may consider the information about Mr. Trump’s official actions only as a guide. They would add to the jury’s understanding of Mr. Trump’s knowledge and intentions regarding his private actions, but would not be subject to criminal culpability, Mr. Dreeben said.
Mr. Dreeben drew an analogy to speech that is covered by the First Amendment but is also relevant evidence to a criminal case. People cannot be charged with crimes for protected speech, but statements a defendant made can be introduced as evidence to shed light on motive.
Samuel Buell, a Duke University professor of criminal law, said it was “quite ordinary” that information is admitted as relevant evidence even though it is not about an action that would itself be subject to a criminal charge. It is particularly common, he said, in cases involving conduct that occurred over a period of time and involved coordination among multiple people.
Still, this case, Mr. Buell noted, is complicated by its “novel territory.” Several justices, he said, had signaled concern about a ruling that would deter future presidents from exercising the powers of their office in a way the country needs for fear of future prosecution.
The bid to recruit false slates of electors may best illustrate how the competing visions of a remedy could play out should the court rule that Mr. Trump cannot be charged for his official actions.
According to the indictment, Mr. Trump worked with a private lawyer to oversee the electors’ recruitment, then pressured Mr. Pence to cite their existence as a reason to block the certification of Mr. Biden’s electoral victory.
If that effort to recruit fake electors were deemed an act that Mr. Trump undertook in his private capacity as a candidate for office, the jury could, of course, be told about it. But under Mr. Sauer’s vision, prosecutors could not raise Mr. Trump’s subsequent attempt to cajole Mr. Pence.
Under Mr. Dreeben’s view, prosecutors could do so because it is relevant to understanding Mr. Trump’s motive for soliciting the electors to start. In this instance, the trial would look more or less the same, no matter the court’s decision.
Should the justices narrow what kinds of actions can be the basis of charges against Mr. Trump, it would raise the question of what conduct in the indictment counts as official versus private. It would not be surprising if courts were to eventually deem his interactions with executive branch subordinates like Mr. Pence and Justice Department officials to have been official, and his efforts with campaign lawyers and aides as private.
Indeed, under questioning by Justice Barrett, Mr. Sauer conceded that a number of actions cited in the indictment sounded private.
Those included Mr. Trump’s work with a private lawyer to spread knowingly false claims of election fraud to spearhead his challenges to the election results; conspiring with another private lawyer to file a court document containing lies to support a challenge; and directing an effort to submit fraudulent slates of presidential electors to obstruct the certification of Electoral College results.
Mr. Dreeben offered a more expansive interpretation of what counts as a private act. For example, Mr. Sauer maintained that the president “communicating with Congress about matters of enormous federal concern” should be understood as an official act. But Mr. Dreeben said that Mr. Trump’s actions in “trying to exploit the violence after Jan. 6 by calling senators and saying ‘please delay the certification proceeding’” were private campaign activity.
Regardless of how the court rules, its decision to take the immunity case has already helped Mr. Trump by delaying a trial that was once scheduled for March. He has long pursued a strategy of running out the clock on legal troubles, and if he can push off any trial until after the election and prevail in becoming president again, he could simply scuttle the case.
If the Supreme Court decides there is some immunity for Mr. Trump’s official acts, the dispute would most likely next return to Judge Tanya S. Chutkan to distinguish which alleged actions in the indictment count as official and which as private.
To the extent prosecutors and defense lawyers disagree about how to consider some of Mr. Trump’s conduct, such a proceeding could preview parts of any eventual trial, including potential witness testimony about his words and deeds.
But Professor Buell said that if the judge ultimately ruled against Mr. Trump on one or more such matters, he probably could not appeal back up to the Supreme Court before a trial. Courts usually treat disputes over the nature of evidence as matters to be appealed after a guilty verdict, he said.
Alan Feuer contributed reporting from New York.
