What Is An ‘Official’ Act, and How Will a Judge Interpret Trump’s Immunity?

Robb Hill for The Washington Post
A man with a protest sign outside the E. Barrett Prettyman U.S. Courthouse.

The Supreme Court has ruled that Donald Trump and other presidents are absolutely immune from prosecution when carrying out their core constitutional powers, but can face trial for private conduct or for official acts under very narrow circumstances.

The Supreme Court sent Trump’s federal Jan. 6 case back to a trial judge to decide three questions: Which alleged acts by Trump charged by special counsel Jack Smith fall under the executive branch’s exclusive constitutional authority and are therefore immune from prosecution? Which are official acts but prosecutable because they pose no danger of intruding on the power or function of the presidency? And what acts can be prosecuted because they involve private conduct, such as actions taken by Trump as a candidate, not as an officeholder?

Here’s what to know about what may be considered “official acts” and how a judge will interpret the legal lines drawn by the high court in Trump’s federal criminal election obstruction case in D.C.

What are ‘official acts’ and why are they presumed immune?

The Supreme Court in a 1982 decision involving President Richard M. Nixon said that the Constitution shields presidents from private civil lawsuits for actions taken as part of their official duties – even those at the “outer perimeter” of their responsibilities. But the court in a 1997 case involving President Bill Clinton said presidents could be sued for private conduct.

The point was to ensure that the threat of civil litigation did not distract a president from his public duties. On Monday, the court said the threat of diversion posed by criminal prosecution was even greater, but acknowledged the compelling “public interest” in ensuring no man is above the law.

Walking that line, the court set a very high bar for prosecutors to overcome the presumed immunity of official acts, saying that to charge them criminally, prosecutors must show doing so would pose no “dangers of intrusion on the authority and functions of the Executive.”

What acts by Trump are allegedly criminal?

Smith has accused Trump of leading a criminal conspiracy to thwart the peaceful transfer of political power, alleging that the president was so determined to hold on to the White House that he propagated a flood of lies claiming that the election was stolen, culminating in the violent Jan. 6 assault on the U.S. Capitol.

The 45-page, four-count indictment says Trump attempted to use knowingly false claims of massive fraud to get state officials to act to change voting results; threatened Justice Department leaders to open sham investigations alleging election crimes; tried to submit fraudulent slates of electors from key swing states to obstruct Congress’s certification proceeding; and pressured his vice president, Mike Pence, to use his ceremonial role overseeing the Jan. 6 proceedings to overturn the results.

Trump allegedly did so despite being told repeatedly that his claims were untrue, including by his attorney general, the nation’s top intelligence officials, White House lawyers and campaign aides. The special counsel has charged that the conspiracy targeted and destabilized a bedrock function of the government – collecting, counting and certifying presidential election results – and continued trying to exploit the violence at the Capitol to press lawmakers to change their positions.

Trump’s defense argues that his actions concerning the election were made to ensure voting laws were faithfully executed, including his interactions with Pence and members of Congress. Trump’s lawyers argued the same regarding his statements to state officials, such as his call to Georgia elections officials to “find” the votes needed to overturn Joe Biden’s election victory, and his many public statements alleging fraud and urging supporters to oppose Congress’s certification of the results.

Which acts are a president’s ‘core constitutional powers’ and immune?

The Supreme Court ruled that Trump’s alleged threats to remove top Justice Department leaders and discussions over investigating voter fraud fall within his core constitutional powers, and cannot be criminally prosecuted.

Examples of exclusive presidential powers listed in the Constitution include commanding the armed forces, appointing government officials and judges, pardoning defendants and engaging in diplomacy. Writing for the majority, Chief Justice John G. Roberts Jr. said the executive branch also has unchallengeable authority to decide which crimes to prosecute.

“The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to ‘take Care that the Laws be faithfully executed,’” Roberts said.

But the minority objected that such holdings were indefensible, rendering the president a “king above the law” in every use of official power.

In dissent, Justice Sonia Sotomayor wrote, “There is a twisted irony in saying, as the majority does, that the person charged with ‘tak[ing] Care that the Laws be faithfully executed’ can break them with impunity.”

What are private, prosecutable acts?

The Supreme Court cautioned that most of Trump’s statements “are likely to fall comfortably within the outer perimeter of his official responsibilities,” but granted that some may have been given unofficially “perhaps as a candidate for office or party leader.” The court said it may be a closer call whether Trump’s interactions with Pence, state officials, private parties or his public statements in the run-up to the violent Jan. 6, 2021, riot were protected.

Lower courts found before Monday’s decision that Trump’s words and conduct in falsely alleging a “stolen” election were unofficial acts, serving only his personal aim of remaining in office for a second term.

In allowing civil lawsuits against Trump to go forward, federal judges have said Trump’s statements could also be taken as an implicit call for violence or lawlessness, culminating in the Jan. 6 Capitol attack that delayed Congress’s certification of Biden’s election victory, led to assaults on nearly 140 officers and contributed to five deaths.

In a concurring opinion with the 6-3 majority split down ideological lines, Justice Amy Coney Barrett added that Trump’s alleged efforts to organize alternate slates of electors was entirely private conduct, since presidents have no official role in such state actions. Such reasoning could also apply to Trump’s effort to pressure state officials to upend Biden’s win.

Still, the controlling majority said analyzing the context of Trump’s statements on Jan. 6 may be challenging but necessary, including, “Knowing, for instance, what else was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic communications and in organizing the rally” at the Ellipse from which Trump sent supporters to the Capitol

What other kinds of evidence are immune and off-limits to prosecutors?

The Supreme Court ruled that prosecutors may not delve at all into a president’s motives, because such “highly intrusive” inquiries would expose even the most obvious official acts to judicial examination. And the high court barred prosecutors from using evidence related to a president’s official acts, even to prove knowledge or intent in committing a private offense.

Carolyn Shapiro, who leads Supreme Court study at Chicago-Kent College of Law, said in Trump’s case, the opinion could render important evidence against Trump inadmissible at trial, although it might be raised in hearings before trial.

“Did Donald Trump know that he lost the election?” and thus acted fraudulently, Shapiro asked. “A lot of that evidence comes from conversations he had with executive branch officials. If those conversations are absolutely immune, and cannot come in as evidence of his state of mind, that’s bizarre … I think that is one of the more misguided and problematic aspects of the opinion.”

In dissent, Sotomayor and Justice Ketanji Brown Jackson said the majority raised the bar so high that it places presidents’ abuse of official power beyond the reach of federal prosecution.

“Under the majority’s test, if it can be called a test, the category of Presidential action that can be deemed ‘unofficial’ is destined to be vanishingly small,” Sotomayor wrote. “Any use of official power for any purpose, even the most corrupt … remains official and immune.”

What happens next?

The high court’s ruling creates the prospect of hearings or perhaps even a mini-trial this summer or fall before U.S. District Court Judge Tanya S. Chutkan over what allegations and evidence prosecutors can later present to a jury.

“I think that about 60 percent of the Trump indictment remains prosecutable,” said former federal prosecutor and University of Michigan law professor Barbara McQuade. “Of course, it’s going to take another year of litigation to get there.”

Much of the road ahead is uncharted. Monday’s opinion leaves much unanswered, and “it really doesn’t provide much in the way of the road map for Judge Chutkan,” Shapiro said.

When will Judge Chutkan decide?

The high court did not fast-track the release of the case to Chutkan, apparently preventing her from taking over the case before August 2. She will need to set a schedule with Trump’s attorneys and prosecutors, and briefing the immunity issues will probably take several weeks.

A hearing might take days or as much as a week or two, and it is not clear if it would include witnesses and if Trump will want to or must attend. Prosecutors could also seek to streamline and speed up the case, such as by dropping charges or allegations. Trump’s defense may want to go slower, or the parties could reach agreement on some matters.

The court also would need to issue a written ruling. All this action could fall in the final eight-week sprint after Labor Day before the Nov. 5 election. The result would be appealable to the U.S. Circuit Court of Appeals for the D.C. Circuit and to the Supreme Court, which would probably not reach a final decision before June 2025, assuming Trump is not reelected and does not order the Justice Department to drop his case.