What the Supreme Court left unsaid about Trump’s criminal immunity

When the Supreme Court set out to decide Donald Trump’s bid for presidential immunity, the justices were aiming to establish “ a rule for the ages .”

Instead, the court left a muddle that both Trump and his prosecutors now hope to exploit — and their efforts may send the case hurtling right back to the justices, perhaps within months.

The July 1 immunity ruling was widely viewed as a major victory for Trump because it declared him “absolutely immune” from being prosecuted for some of the actions he took while attempting to subvert the 2020 election. But the ruling is littered with ambiguities, ill-defined standards and unanswered questions about many of the other acts Trump undertook, constitutional experts say.

“You could understand this as sort of an exercise in kicking the can down the road,” said Sai Prakash, a law professor at the University of Virginia.

For now, the case is back in front of U.S. District Judge Tanya Chutkan , who must figure out how to take the high court’s fuzzy pronouncements and apply them to the specific allegations in the election indictment brought by special counsel Jack Smith.

Chutkan asked the special counsel and Trump’s team to give her proposals Friday about how — or whether — the case can proceed.

On Thursday evening, however, prosecutors asked for an additional two weeks to sort through what they called “the new precedent” the Supreme Court issued more than a month ago and come up with a plan about how to move forward. Trump’s lawyers, who have repeatedly sought delays in the case, readily agreed to this one.

The murkiness of the Supreme Court’s ruling is poised to dominate the discussion set to play out in front of Chutkan. Trump has already argued that the ruling is so sweeping that it should unravel all four of his criminal cases . In one of those cases — the New York hush money case — prosecutors pushed back, insisting that the ruling is “narrow” and doesn’t protect Trump as much as he thinks.

Neither Smith nor Chutkan has given much hint yet about how they view the future of the federal election case, in which Trump is accused of pressuring government officials and lying to Americans as part of a conspiracy to overturn President Joe Biden’s victory. But if, in the coming weeks, Chutkan rules that significant aspects of the case can proceed toward a trial, Trump is virtually certain to appeal again — a process that could require the justices to clarify just how broadly the scope of presidential immunity sweeps.

“It may be that the effort to actually apply this test that the court has handed down will only further illustrate just how fundamentally lawless this opinion is,” University of Pennsylvania law professor Kate Shaw said. “It's not only, in my view, wrong as a matter of constitutional theory; I don't think it sets forth anything like an administrable test, and I think that this next phase will only underscore that set of failings.”

Three categories with blurred boundaries

The immunity ruling came down largely 6-3 along the court’s usual ideological lines, with the conservative justices in the majority. The court divided actions taken by presidents into three buckets.

First, presidents have total immunity for any action that falls under their “core constitutional powers,” such as issuing pardons or commanding the military. Former presidents cannot be prosecuted even for egregiously illegal acts that fall under that umbrella. Indeed, the Supreme Court made clear that one large plank of Smith’s prosecution falls into the “core powers” category: the evidence related to Trump’s effort to wield the Justice Department as a tool of his effort to subvert the election.

Second, the court said, presidents have at least “some immunity” for all other “official” acts that aren’t within a president’s core powers. In practice, this category likely covers most of what presidents do — and most of what Trump is accused of doing in his bid to subvert the election.

Third, presidents have no immunity for purely private — or “unofficial” — acts.

One problem for Chutkan — and everyone else seeking to understand the ramifications of the immunity ruling — is that the high court did not clearly explain what separates official from unofficial acts. Nor did the court provide a rubric to determine when an official presidential act is “core” (and thus absolutely immune) or non-core (and thus perhaps subject to prosecution in some circumstances).

His lawyers and prosecutors seem likely to battle over these categories all the way back to the Supreme Court. Were Trump’s public statements promoting discredited claims of election fraud part of his official powers as president? What about his speech to the crowd that later morphed into a violent mob on Jan. 6, 2021? Or his efforts to pressure then-Vice President Mike Pence to refuse to certify the election? How the immunity ruling applies to any of these actions is far from clear — though the court did note that Trump is “presumptively” immune for his conversations with Pence.

Supreme subjectivity

Even if Chutkan succeeds in categorizing Trump’s alleged acts, her work won’t end there.

For any of Trump’s actions she deems “official” but not part of a president’s “core” powers, the judge will then need to apply another legal standard that the Supreme Court divined in the immunity ruling: She must decide whether criminalizing those actions would pose any “dangers of intrusion on the authority and functions of the Executive Branch.” Only if Chutkan concludes there is no such risk can the charges and evidence remain part of the case against the former president.

“My goodness is that subjective,” said Boston University law professor Jed Shugerman. “This presumption of immunity is basically whatever the Supreme Court thinks is intrusive and, boy, is that an open door for partisan interpretation.”

The rather mushy standard seems to depart from the conservative high court’s stated preference for giving lower courts clear rules to apply.

“It’s unusual for the Roberts court to adopt standards, rather than bright-line rules or clear historical tests,” said Yale law professor William Eskridge. “Case after case, they’ve rejected balancing standards.”

Eskridge noted that the court’s rare forays into these subjective standards have similarly occurred in other Trump-related cases, such as his bid to shield his bank records from Congress and from prosecutors investigating him in Manhattan. That’s because Trump’s repeated efforts to push the boundaries of the presidency have forced unprecedented issues before the court.

There’s one other link between those cases, Eskridge added. They each produced “a result that maximizes the power of the U.S. Supreme Court.”

Unresolved issues and signs of a fissure

Another strange twist in the high court’s ruling is that even as it instructed Chutkan to conduct a careful assessment of “official” presidential acts, the justices also signaled they might simply ignore her conclusion and rule that all acts within a president’s official powers — even non-core powers — are entirely immune from prosecution.

“Because we need not decide that question today, we do not decide it,” Chief Justice John Roberts wrote in the majority opinion , leaving a rather huge loose end for the court to tie up on some future date.

Some court watchers believe the chief justice’s punt on that issue may reflect a fissure within the court’s six-justice conservative majority, with some justices favoring absolute criminal immunity for all of a president’s official acts and others opposed to such a sweeping expansion of executive power.

There was one other sign of a fault line in the majority’s ruling. Justice Amy Coney Barrett wrote a separate opinion that she labeled a concurrence but that actually dissented from a key conclusion in the majority ruling: that presidential immunity puts nearly all evidence of a president’s motives or intent off-limits to prosecutors.

A chance for a ‘mini-trial’

Some critics of the Supreme Court’s immunity ruling say the significant ambiguity in the opinion has one silver lining for the special counsel. While it appears impossible for a trial in the federal election case to occur before this year’s election, the ruling does empower Chutkan to conduct what some are calling a “mini-trial” — a hearing to air much of the evidence in the case.

The judge hasn’t yet signaled whether she plans such a court session, how long it might take or whether she would require Trump to sit through it at the height of the presidential campaign season. And the prosecution’s latest request for delay raises further doubts about whether it will be practical to hold such a mini-trial before the election.

But if Chutkan proceeds with that sort of hearing in September or October, it has the potential to drag the media spotlight back to Trump’s legal woes as he would prefer to be pressing his political case against Vice President Kamala Harris.

“While a mini-trial would not result in a jury’s determination regarding Trump’s guilt, it would — as a collateral matter — employ the adversarial process to get at the truth in a way that could provide voters with more information about Trump’s alleged 2020 election interference conspiracy and assist them in rendering their political verdict at the ballot box in November,” former Obama White House attorney Norman Eisen and former Senate Judiciary Committee law clerk Joshua Kolb wrote recently for Lawfare.

But such a “mini-trial” almost certainly won’t resolve any of the outstanding issues in the case, because Trump or prosecutors or both are likely to appeal Chutkan’s findings before the case proceeds to a full trial, and the appeal process is almost certain to take months. If Trump wins the election, his attorney general almost certainly would drop the case.

That might be exactly what the Supreme Court’s majority is hoping for by leaving so much unresolved, some legal scholars said.

“I’m thinking that the court doesn’t want this to come back in the fall,” Prakash said. “I’m sure the court hopes this case goes away.”