Supreme Court rules Trump immune in ‘improper’ Jeffrey Clark scheme as majority takes hacksaw to Jan. 6 case

With its ruling on Monday recognizing that former presidents have immunity against criminal prosecution for some of their acts while in office, the U.S. Supreme Court appears to have taken a hacksaw to former President Donald Trump’s criminal case in Washington, D.C., where he faces allegations he conspired to subvert the 2020 election.

Chief Justice John Roberts wrote Monday that presidents “cannot be indicted based on conduct for which they are immune from prosecution” and said that since the matter is on remand to the lower court before U.S. District Judge Tanya Chutkan, it is up to her to analyze whether the charges in Trump’s four-count criminal indictment fall under the umbrella of protected official or unprotected unofficial acts.

“And the parties and the district court must ensure that sufficient allegations support the indictment’s charges without such conduct. Testimony or private records of the president or his advisers probing such conduct may not be admitted as evidence at trial,” Roberts wrote.

This single sentence deals an arguable death blow to key elements of the Jan. 6 case against Trump, and perhaps especially to those allegations involving Trump’s alleged co-conspirator, Justice Department attorney Jeffrey Clark, who was recently sanctioned and recommended for disbarment. Clark was introduced to Trump by Republican Rep. Scott Perry of Texas.

Special counsel Jack Smith alleges that the former president and a series of co-conspirators, including Clark, worked in tandem to weaponize the Justice Department in the waning days of his presidency, and that key to that weaponization was Clark’s drafting of a letter he and Trump allegedly planned to send to state legislatures falsely declaring that the DOJ was concerned about rampant voter fraud in key battleground states in 2020.

The letter also proposed the submission of so-called “alternate” elector slates for Trump in those states. In August of 2023, Smith alleged — and extensive evidence provided more than a year earlier to the House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol showed — that Trump and Clark discussed their plan repeatedly in the run-up to the certification of the 2020 election,

Trump is accused of telling Clark that if he was unable to get then-Acting Assistant Attorney General Jeffrey Rosen and other high-ranking officials at the department to go along with sending the letter — which prosecutors said contained allegations of voter fraud Trump had long known to be false — then he would replace Rosen with the more amenable Clark.

Notably, Trump White House call logs unearthed by the Jan. 6 committee revealed that by Jan. 3, 2021, Clark was already being referred to as “acting Attorney General” though he was still a lower-level lackey at that point.

It was only a tense meeting between Trump, Rosen, former Deputy Attorney General Richard Donoghue and Richard Engel, the former head of the Office of Legal Counsel, that derailed Clark’s ascendency, according to testimony Rosen, Donoghue and Engel gave to the Jan. 6 committee.

In Monday’s ruling, Roberts essentially found that whatever the substance of the allegations about Clark or Trump may be, at this juncture it’s of little consequence.

Roberts explained:

The indictment’s allegations that the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. Because the president cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from the prosecution for the alleged conduct involving his discussions with Justice Department officials.

The Robert’s opinion also touched on matters that apply to other critical elements of the election subversion indictment like the alleged pressure campaign Trump foisted on then-Vice President Mike Pence to insert himself into the certification beyond his ministerial role and allow inauthentic elector slates to be considered.

Special counsel Smith alleges that Pence told Trump there was no constitutional basis for him to do so and that it was “improper.”

“You’re too honest,” Trump allegedly told Pence, according to the August 2023 indictment.

But Roberts found that when weighing the relationship between a president and vice president, since the vice president is also the President of the Senate and therefore holds the tie-breaking vote, “it is thus important for the President to discuss official matters with the Vice President to ensure continuity within the Executive Branch and to advance the President’s agenda in Congress and beyond.”

But Roberts offered some qualifiers to this: With respect to the election certification, for example, Congress has said that a vice president’s role in the counting of electoral votes is clearly defined and that the president plays no direct constitutional or statutory role in that process.

“So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose ‘dangers of intrusion on the authority and functions of the Executive Branch,'” Roberts said.

But “at the same time, however,” he wrote:

[T]he President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.

Therefore, Roberts found that “ultimately” it is “the Government’s burden to rebut the presumption of immunity.”

“We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch,” the opinion states.

In a concurring opinion, Justice Amy Coney Barrett agreed Trump had some immunity but noted too that a “president facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts in the indictment.”

“The Constitution does not insulate Presidents from criminal liability for official acts. But any statute regulating the exercise of executive power is subject to a constitutional challenge. A criminal statute is no exception. Thus, a President facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment. If that challenge fails, however, he must stand trial,” Barrett wrote. [Emphasis original.]

Accepting the majority’s position that evidence involving official acts cannot be admissible at trial, Barrett still posited that the Constitution does not, however, “require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable.”

As Law&Crime reported in April just ahead of oral arguments in the immunity case, the lower courts, including Chutkan and the U.S. Court of Appeals, did not side with Trump’s sweeping claims to immunity and the appeals court pointed to the separation of powers doctrine on this point.

“Properly understood, the separation of powers doctrine may immunize lawful discretionary acts but does not bar the federal criminal prosecution of a former president for every official act,” the appellate per curiam ruling stated at the time.

Trump’s claim of “categorical immunity from criminal liability for any assertedly ‘official’ action that he took as President” was “a contention that is unsupported by precedent, history or the text and structure of the Constitution,” that court concluded.

Roberts noted in Monday’s opinion that he felt those decisions were rendered on a “highly expedited basis” because they failed to analyze conduct which should be categorized as official versus unofficial.

“Neither party has briefed that issue before us (though they discussed it at oral argument in response to questions). And like the underlying immunity question, that categorization raises multiple unprecedented and momentous questions about the powers of the President and the limits of his authority under the Constitution. As we have noted, there is little pertinent precedent on those subjects to guide our review of this case—a case that we too are deciding on an expedited basis, less than five months after we granted the Government’s request to construe Trump’s emergency application for a stay as a petition for certiorari, grant that petition, and answer the consequential immunity question. Given all these circumstances, it is particularly incumbent upon us to be mindful of our frequent admonition that “[o]urs is a court of final review and not first view,” the chief justice wrote.

Notably, the chief justice also appeared to suggest that Trump’s statements before the Capitol was attacked may have been mischaracterized in his indictment.

“Whether the Tweets, that speech, and Trump’s other communications on January 6 involve official conduct may depend on the content and context of each. 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, could be relevant to the classification of each communication. This necessarily fact-bound analysis is best performed initially by the District Court. We therefore remand to the District Court to determine in the first instance whether this alleged conduct is official or unofficial,” Roberts wrote.

Trump was indicted by Smith on the election subversion charges in August. A trial date was initially set for March. A legal tug-of-war that spanned months and led to Monday’s 6-3 decision means that the trial is delayed again, and it is almost a certainty that it will not go to trial before the November 2024 presidential election.

Trump, a convicted felon, called the ruling “solid” on Monday, writing on Truth Social that it was a “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY.” [Emphasis original]

For justices in the minority, the ruling marked a staggering defeat poised to have generational impact.

Justice Sonia Sotomayor lamented that the conservative majority “reshapes the institution of the presidency” with its ruling and made a “mockery” of the notion that “no man is above the law.”

She was joined by Justices Elena Kagan and Ketanji Brown Jackson.

Sotomayor wrote in her dissent:

The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

“With fear for our democracy, I dissent,” Sotomayor added.

Roberts brushed this off in his opinion as an overreaction.

“As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the court actually does today,” Roberts wrote.

What is certain is that the decision will lead to a series of protracted hearings, appeals and, in all likelihood, a flurry of briefs by Trump’s lawyers who, historically, have moved to dismiss the indictment outright.

In addition to allegedly pressuring state officials by invoking bogus claims of voter fraud and conspiring to submit slates of fake electors, Trump is also accused of intimidating voters by raising a mob of his supporters who gathered at the Capitol and delayed the election certification for several terrifying hours.

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