The Supreme Court's decision on presidential immunity on Monday will make it more difficult for Special Counsel Jack Smith and Fulton County District Attorney Fani Willis to prosecute former President Donald Trump and cast serious doubt on the nature of their cases.
The ruling, which found that former presidents are entitled to “at least constructive immunity” for all “official business,” will likely force Smith to start from scratch while Judge Tanya Chutkan considers which parts of the indictment fall into that category and qualify for immunity. Not only does this procedure mean a pre-election trial is virtually impossible, but combined with another ruling this term on sabotage statutes related to two of the indictment's charges, Smith will likely be left with little more than a shell of the evidence.
“I think it could take the court several months to determine what is official conduct and what is unofficial conduct,” John Yoo, a law professor at the University of California, Berkeley, and a former Justice Department official under former President George W. Bush, told the Daily Caller News Foundation. “Both sides must be given a fair opportunity to explore and argue the issues before the judge begins his analysis.” (Related: Justice Thomas questions constitutionality of Jack Smith appointment)
Combined with Fisher v. United States, in which a Supreme Court majority found the Department of Justice's interpretation of obstruction statutes used to prosecute hundreds of Jan. 6 defendants and linked to two of President Trump's indictments, was too broad, Yu told DCNF that there is “very little left” in Smith's case. Claimed In a recent Fox News column, he said President Joe Biden and Attorney General Merrick Garland would be wise to “drop the special counsel's investigation, blame its failure on the Supreme Court and leave the question of President Trump's responsibility to the American people in November.”
“It is highly unclear whether any valid charges remain against Trump in either Washington, D.C. or Atlanta,” John Malcolm, vice president of the Heritage Foundation's Institute for Constitutional Government, told DCNF.
“Judge Tanya Chutkan certainly has a lot of work to do,” he told DCNF.
He said the Fisher verdict alone makes it “uncertain” how Trump will survive two charges that he “obstructed, attempted to obstruct and conspired to obstruct an official proceeding.”
“In determining immunity, the Court essentially ordered Chutkan to dismiss all charges relating to President Trump's conversations with Justice Department officials, making clear that he will enjoy immunity for any actions he took while in office that fall within the 'periphery' of his presidential powers,” Malcolm continued.
The case was on hold for months while Trump's appeal was pending at the Supreme Court, forcing Chutkan to cancel a trial originally scheduled for March 4. While it's unlikely the trial will be rescheduled before the election, it's possible Chutkan could schedule a hearing on immunity issues next month to allow prosecutors to present some of the evidence against Trump, The New York Times reported. report Monday.
ATLANTA, GEORGIA – JUNE 27: Republican presidential candidate and former US President Donald Trump participates in the CNN presidential debate at CNN Studios in Atlanta, Georgia on June 27, 2024. (Photo by Justin Sullivan/Getty Images)
The immunity ruling would affect not just Smith's federal election interference lawsuit, but all of Trump's criminal cases.
The immunity ruling would also be bad news for the Georgia lawsuit against Trump, in which Trump and his co-defendants are seeking to disbar him for an “inappropriate” relationship with the special counsel appointed by Fani Willis, a case already on hold.
” [immunity] “Because this ruling applies to all cases, state district attorneys will have to pass the same test as if they were prosecuting a president for unofficial conduct,” Yu told DCNF. (RELATED: Judge Marchan postpones President Trump's sentencing until September)
Regarding Smith's Florida documents case, Malcolm said, “Taking some of the documents out of the White House was [an] “Public acts”
“It will also be a problem for Special Counsel Jack Smith if the judge does not rule that the case should be dismissed in its entirety because Special Counsel Smith's appointment violates the Appointments Clause and is therefore unconstitutional,” he said.
In a concurring opinion, Justice Clarence Thomas questioned the constitutionality of Smith's appointment, writing that “it is unclear whether the Office of Special Counsel is 'established by law,' as the Constitution requires.”
“Without a statute defining the role of a special counsel, he cannot proceed with this prosecution,” Thomas wrote. “A private citizen cannot bring criminal charges against anyone, especially a former president.”
Judge Eileen Cannon recently held a hearing in Florida to consider the issue.
The immunity decision is already affecting Trump's trial in Manhattan, where a jury in May convicted him of 34 counts of falsifying business records. Judge Juan Marchand on Tuesday agreed to postpone Trump's sentencing date from July to September after Trump's lawyers argued the sentence should be set aside.
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