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

ANALYSIS:

Special counsel Jack Smith’s new indictment against Donald Trump relies on conversations between him and former Vice President Mike Pence, as well as the former president’s own tweets about his efforts to overturn the results of the 2020 election results.

Legal analysts say the Supreme Court will likely be dragged back into the legal fracas to decide if those communications are protected by any valid defense — such as presidential immunity or the First Amendment.

But 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 added.

The high court’s landmark ruling in July saw the justices split 6-3 on whether a president has immunity from prosecution. The majority ruled that a president enjoys absolute immunity for core official functions, presumed immunity for other official conduct but no immunity for unofficial acts.

The decision was seen as a win for Mr. Trump: It delayed proceedings against him past the November election, as a lower court now has to 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 as part of a core function and entitled to immunity, but his communications with other officials and the vice president are more difficult calls.

“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 read.

But the court went on to say the government could overcome that presumption, as 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 for the trial judge to grapple with, as 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,” said John Lauro, the lawyer representing Mr. Trump, at a hearing last week before Judge Chutkan, an Obama appointee.

The high court’s ruling prompted Mr. Smith to update the former president’s indictment last month in his federal election fraud case in Washington. 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, the feds allege that the former president committed the conspiracies through his “pervasive and destabilizing lies about election fraud.”

Throughout the 36-page charging document, Mr. Smith alleges that Mr. Trump spoke numerous times to the former 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 that 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 a number of tweets and a campaign statement in which Mr. Trump allegedly 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.

Before the Jan. 6 gathering, the indictment said Mr. Trump used his Twitter platform to deceive voters.

“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 what each communication was about in order to decide if it is protected under Supreme Court precedent.

Ultimately, the case will return to the Supreme Court for the justices to have a final say, legal analysts say.

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