Lower court to decide if Trump’s communications with Pence, tweets have immunity

ANALYSIS:

Special counsel Jack Smith’s latest indictment of Donald Trump relies on his conversations with his vice president, Mike Pence, and his tweets about efforts to overturn the 2020 election results.

Legal analysts say the Supreme Court will likely be pulled back into the fray to decide whether those communications are protected by any valid defense, such as presidential immunity or the First Amendment.

For now, the justices have left it to U.S. District Judge Tanya Chutkan to decide how to classify the communications.

“The Supreme Court said that Executive Branch power might still be implicated, if the president is talking with the vice president about advancing the administration’s agenda in Congress,” said David A. Sklansky, a law professor at Stanford, referring to the high court’s immunity ruling in July.

“But the conversations between Trump and Pence that are discussed in the indictment don’t have to do with advancing any of the Trump administration’s policy agenda in Congress. They have to do with advancing Trump’s candidacy for a second term but refusing to certify the results of the election,” Mr. Sklansky said.

In a landmark ruling in July, the justices split 6-3 on whether a president has immunity from prosecution. The majority ruled that a president has absolute immunity for core official functions, presumed immunity for other official conduct and no immunity for unofficial acts.

The decision was seen as a win for Mr. Trump. It delayed proceedings against him past the November election because a lower court now must determine which charges are applicable and which are not.

In the majority opinion, the justices said Mr. Trump’s communications with his attorney general would appear to be part of a core function and entitled to immunity, but his communications with the vice president and other officials are more complex.

“The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct,” the opinion said.

The court said the government could overcome that presumption because Mr. Pence’s role overseeing the election certification was related to his duties as president of the Senate — not as vice president.

The issue is now before the trial judge. Mr. Trump’s legal team argues that the communications with Mr. Pence are presumed to have immunity.

“The entire incitement fails because the entire indictment was based on immune information,” John Lauro, the lawyer representing Mr. Trump, said at a hearing in September before Judge Chutkan, an Obama appointee.

The high court’s ruling prompted Mr. Smith to update the former president’s indictment in August in his federal election fraud case in the District of Columbia. He kept four charges: conspiracy to defraud the U.S., conspiracy to obstruct an official proceeding, obstruction of an official proceeding, and conspiracy against rights.

In the latest indictment, federal prosecutors accuse Mr. Trump of committing the conspiracies through his “pervasive and destabilizing lies about election fraud.”

Throughout the 36-page charging document, Mr. Smith says Mr. Trump spoke numerous times with his vice president, pushing him to reject the electoral votes on Jan. 6, 2021, when Congress met to certify the election results.

Mr. Pence insisted that his role was ceremonial and he did not have constitutional authority to reject the votes.

“You know, I don’t think I have the authority to change the outcome,” Mr. Pence replied, according to the indictment.

“You’re too honest,” Mr. Trump allegedly said.

The indictment also lists several tweets and a campaign statement alleging that Mr. Trump told his supporters that Mr. Pence could halt the certification of the results.

“The Vice President has the power to reject fraudulently chosen electors,” he said in one tweet.

In a campaign statement, he said: “The Vice President and I are in total agreement that the Vice President has the power to act.”

Furthermore, during the Jan. 6, 2021, speech with his supporters at the “Stop The Steal” rally, Mr. Trump said Mr. Pence needed to do “the right thing” so “we win the election.”

“We fight, we fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore,” Mr. Trump told his supporters.

The indictment said Mr. Trump used his Twitter platform to deceive voters before the gathering.

“Wow! Blockbuster testimony taking place right now in Georgia. Ballot stuffing by Dems when Republicans were forced to leave the large counting room. Plenty more going, but this alone leads to an easy win of the State!” one tweet read.

Adam Feldman, Supreme Court scholar and creator of the “Empirical SCOTUS” blog, said that even under recent First Amendment precedent on public officials’ use of social media platforms, the charges related to his tweets would likely move forward.

The justices ruled that public officials could use their platforms for official action and personal posts, but it is up to lower courts to decipher the communications and decide which are protected by the First Amendment.

“Ultimately, we’re at an early stage with an indictment, so while it seems likely that this count will proceed, there are many variables that could affect how it actually gets litigated and decided,” Mr. Feldman said.

Josh Blackman, a professor at South Texas College of Law, said Judge Chutkan will determine the subject matter of each communication to decide whether it is protected under Supreme Court precedent.

Legal analysts say the case will ultimately return to the Supreme Court, where the justices will have a final say.

“All this is sort of academic. If he wins, none of this will matter,” said Mr. Blackman, referring to the belief that a Trump Justice Department would not pursue the case. “If [Kamala Harris] wins, then this does matter bigly.”