“The Supreme Court’s presidential immunity decision remanded the question of determining what are ‘official acts’ vs. ‘unofficial acts’ to the lower courts. Judge Tanya Chutkan was supposed to hold hearings on this. Has there been any progress on this, or is the process basically dead in the water?” – Lee
Hi Lee,
It’s basically dead in the water for the federal election interference case you reference. But the immunity ruling’s impact is still being litigated in another of the president’s criminal cases that’s on appeal, as well as in civil litigation that’s testing how broadly the ruling applies.
You correctly recall that when the Supreme Court issued the immunity decision in July 2024, the justices sent the case back to Judge Chutkan, who presided over it in the district court. She was tasked with applying the new immunity test formulated by the high court’s GOP-appointed majority to Trump’s indictment, to see how much of then-special counsel Jack Smith’s case could make it to trial.
But she never got to make that full determination. Trump’s victory in the 2024 election led the Justice Department to drop the case due to its policy against prosecuting sitting presidents. And no matter what the district judge would have decided in those pretrial proceedings, Trump would have likely appealed her ruling back to the justices to try and further narrow the case against him. We’ll never know how that analysis would have turned out, or what a jury would have said had the case made it to trial. (The president pleaded not guilty in all four of his criminal cases.)
So, as you say: dead in the water on that one. Likewise legally deceased for various reasons are the federal classified documents case, which the DOJ also backed out of due to its prosecution policy, as well as the Georgia 2020 election case, which was dismissed after it veered off into a strange sideshow over the state prosecutor’s disqualification.
Trump’s fourth criminal case, the New York hush money case, is on appeal following his trial conviction before he returned to the White House. It’s the only one of his four prosecutions that went to trial. The falsifying business records charges of which he was convicted didn’t directly involve presidential conduct; they stemmed from his scheme to cover up hush money paid to keep a porn star from publicly saying ahead of the 2016 election that she had sex with him years prior. But his lawyers argued that Manhattan prosecutors nonetheless overstepped by using evidence from Trump’s time in office to convict him. Prosecutors have argued that the immunity ruling has “no bearing” on the case. The appeal is slowly making its way to the justices.
Meanwhile, the criminal ruling has made its way into civil case filings, too.
To take a couple of recent examples, Trump’s lawyers invoked it in his latest appeal of the E. Jean Carroll defamation damages that’s coming to the Supreme Court. It’s also cited in the DOJ’s new lawsuit against D.C. Bar authorities to try to stop them from taking professional disciplinary actions against Trump-aligned lawyers.
Though the immunity ruling was about criminal prosecutions against former presidents, rather than non-criminal actions against non-presidents, the DOJ wrote in its complaint against the bar authorities that a president’s “constitutionally required immunity would provide little protection if Executive Branch attorneys could be targeted for internal Executive Branch deliberations.” From that premise, the DOJ argued that former Assistant Attorney General Jeffrey Clark, an environmental lawyer from Trump’s first term who has been the focus of disciplinary proceedings for his actions taken around the 2020 election, has been illegally punished in those non-criminal proceedings “for his official acts as a Senate-confirmed Executive Branch attorney.”
That sounds like a stretch, but so did (and does) the immunity ruling itself. We’ll see how far the courts say it extends in these cases and others. Ultimately, the justices could have the last word on how far they intend to go.
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