Trump-Appointed Justice Goes Out of Her Way to Argue Ex-President’s ‘Fake Electors’ Scheme Not Protected From Prosecution

AP Photo/Damian Dovarganes, File

Supreme Court Justice Amy Coney Barrett , who was appointed by former President Donald Trump , agreed with the majority opinion that presidents have absolute immunity when it comes to official acts in office. However, she broke with her conservative colleagues on a few points.

In her concurring opinion to the majority, which was issued by Chief Justice John Roberts on Monday, Coney Barrett agreed with the dissent by Justice Sonia Sotomayor that acts that took place while a president was in office could be introduced as evidence. Coney Barret wrote:

I do not join Part III–C, however, which holds that the Constitution limits the introduction of protected conduct as evidence in a criminal prosecution of a President, beyond the limits afforded by executive privilege. …

The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable. …

[E]xcluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo , the jury must be allowed to hear about both the quid and the quo , even if the quo , standing alone, could not be a basis for the President’s criminal liability.

Coney Barrett also specifically addressed the case at hand, Trump’s election subversion case. In a footnote, she discussed discerning what may constitute a private act versus an official one:

Sorting private from official conduct sometimes will be difficult — but not always. Take the President’s alleged attempt to organize alternative slates of electors . See, e.g. , App. 208. In my view, that conduct is private and therefore not entitled to protection. See post , at 27–28 (SOTOMAYOR, J., dissenting). The Constitution vests power to appoint Presidential electors in the States. Art. II, §1, cl. 2; see also Chiafalo v. Washington , 591 U. S. 578, 588–589 (2020). And while Congress has a limited role in that process, see Art. II, §1, cls. 3–4, the President has none. In short, a President has no legal authority — and thus no official capacity — to influence how the States appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct.

The majority opinion left the issue of what constitutes a private versus an official act a matter for the lower court to handle, putting this decision in the hands of Judge Tanya Chutkan .