Immunity Litigation

¶On October 5, 2023, Mr. Trump filed a motion to dismiss the indictment based upon a sweeping claim of presidential immunity for all official conduct during his presidency. ECF No. 74. After briefing, on December 1, 2023, the district court rejected Mr. Trump's claim of immunity, concluding that "[t ]he Constitution's text, structure, and history" do not support the contention that the President is absolutely immune from prosecution for criminal acts performed within his official responsibilities and that "[n]o court-or any other branch of government-has ever accepted" such a contention. United States v. Trump, 704 F. Supp. 3d 196,²⁰⁶²⁰⁶ SCO-04952956 (Tweet 12/04/2020); SCO-04976277 at 08:44-09:10 (Video of Georgia Secretary of State Press Conference 12/07/2020). (D.D.C. 2024). The court held that a former President "may be subject to federal investigation, indictment, prosecution, conviction and punishment for any criminal acts undertaken while in office," id., that "[e]xempting former Presidents from the ordinary operation of the criminal justice system" would "undermine the foundation of the rule of law," id. at 217, and that Mr. Trump's "four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal responsibility that governs his fellow citizens," id. at 219.

127

¶The district court reasoned that the prospect of federal criminal liability for a former President did not impair the Executive's ability to perform its constitutionally mandated functions, "either by imposing unacceptable risks of vexatious litigation or otherwise chilling the Executive's decision-making process," and that "it is likely that a President who knows that their actions may one day be held to criminal account will be motivated to take greater care that the laws are faithfully executed." Id. at 210. With respect to the possible chilling effect that criminal liability might have on a President, the court concluded that "the possibility of future criminal liability might encourage the kind of sober reflection that would reinforce rather than defeat important constitutional values. If the specter of subsequent prosecution encourages a sitting President to reconsider before deciding to act with criminal intent, that is a benefit, not a defect." Id. at 213.

¶Mr. Trump appealed the district court's ruling. The D.C. Circuit heard oral argument on January 9, 2024. In a telling exchange, counsel for Mr. Trump acknowledged that, under his theory of immunity, a President could not be criminally prosecuted for ordering SEAL Team Six to assassinate a political rival unless Congress had first impeached and convicted that President for the same conduct. See Sup. Ct. J.A. 131-132. Less than a month after argument, the court of appeals affirmed the district court's decision, stating, "We cannot accept that the office of the

128

¶Presidency places its former occupants above the law for all time thereafter." Trump,⁹¹⁹¹ See ECF No. 252 at 68 & n.371; SCO-02235176 at 3 (Remarks by Mr. Trump at Victory Rally in Dalton, GA 01/04/2021); SCO-04976283 at 10:56-11:15 (Video of Dalton, GA speech 01/04/2021). F.4th at 1200. In a unanimous opinion, the court stated that "our analysis is 'guided by the Constitution, federal statutes and history,' as well as 'concerns of public policy."' Id. at 1189 (quoting Nixon v. Fitzgerald, 457 U.S. 731, 747 (1982) (Fitzgerald)). "Relying on these sources," the court rejected each of Mr. Trump's "potential bases for immunity both as a categorical defense to federal criminal prosecutions of former Presidents and as applied to this case in particular." Id. With respect to the case before it, the court stated that "former President Trump's alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government." Id. at 1199. As such, it "would be a striking paradox if the President, who alone is vested with the constitutional duty to 'take Care that the Laws be faithfully executed,' were the sole officer capable of defying those laws with impunity." Id. at 1198 (quoting U.S. CONST. art II,§ 3, cl. 1).

¶Like the district court, the court of appeals found that "the risk of criminal liability chilling Presidential action appears to be low" and that "[i]nstead of inhibiting the President's lawful discretionary action, the prospect of federal criminal liability might serve as a structural benefit to deter possible abuses of power and criminal behavior." Id. at 1196 (citing with approval the district court's observation that "[ e]very President will face difficult decisions; whether to intentionally commit a federal crime should not be one of them"). Based on the safeguards in place to prevent baseless indictments applicable to all citizens, the court similarly found that "the risk that former Presidents will be unduly harassed by meritless criminal prosecutions appears slight." Id. at 1197.

¶More broadly, the court of appeals' evaluation of our system of separated powers led it to conclude "that there is no functional justification for immunizing fo1mer Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment." Id. at 1200. Because it concluded that Mr. Trump did not have immunity for the crimes or conduct charged in the case, the court of appeals did not decide whether every allegation in the indictment constituted an official act. However, the court noted that "because the President has no official role in the certification of the Electoral College vote, much of the misconduct alleged in the Indictment reasonably can be viewed as that of an office-seeker including allegedly organizing alternative slates of electors and attempting to pressure the Vice President and Members of the Congress to accept those electors in the certification proceeding." Id. at 1205 n.14 (emphasis in original). The court therefore found it "doubtful that all five types of conduct alleged in the indictment constitute official acts." Id.

129

¶In a divided decision, the Supreme Court vacated the court of appeals' judgment and remanded the case for further proceedings. Trump, 603 U.S. at 642.²⁶⁷²⁶⁷ Justice Sotomayor, who authored a dissenting opinion joined by Justices Kagan and Jackson, described the majority opinion as follows: The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now "lies about like a loaded weapon" for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U.S. 214, The Supreme Court weighed the competing constitutional considerations differently than the lower courts. While the lower courts and the dissenting Justices placed greater emphasis on rule of law considerations, the majority found that the need for Presidents to act "boldly and fearlessly" in executing their duties of office was of paramount importance. Id. at 640.

130

¶The Court reasoned that there "'exists the greatest public interest' in providing the President with 'the maximum ability to deal fearlessly and impartially with the duties of his office,"' "free from undue pressures and distortions." Id. at 610, 615 (citation and quotations omitted). The Court found that "[c]riminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession" and that the threat of a criminal prosecution was "plainly more likely to distort Presidential decisionmaking" than a civil suit. Id. at 613. In responding to the dissenting Justices' concerns that the vast immunity that the Court provided opened the door to lawless behavior by Presidents in violation of their duty to faithfully execute the law, the Court assessed that a President who uses official power to violate the law was a less likely "prospect" than "an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next." Id. at 640.

¶The Court rejected the lower courts' view that established safeguards such as the Department of Justice's "longstanding commitment to the impartial enforcement of law," a neutral grand jury, the requirement in criminal law that the Government must prove its case beyond a reasonable doubt, courts enforcing "existing principles of statutory construction and as applied constitutional challenges," and certain President-specific defenses like the "public authority defense or the advice of the Attorney General," would adequately protect a former President charged with criminal wrongdoing. Id. at 635-63 7. Instead, the Court placed greater weight on the risk to the administration of government from excessive caution by a President who might face criminal accountability for official acts, reasoning that "[ w ]ithout immunity, such types of prosecutions of ex-Presidents," for example over claims of insufficient enforcement of federal law, "could quickly become routine," thus "enfeebling" the presidency through "such a cycle of factional strife." Id at 640.

131

¶In conducting its balancing, the majority placed greater weight than did the dissents or the lower courts on the importance of protecting the independence and fearlessness of the President as opposed to the risk that immunity would encourage lawless behavior. Contrast id. at 614 ("Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution.") with 91 F.4th at 1198 ("The risks of chilling Presidential action or permitting meritless, harassing prosecutions are unlikely, unsupported by history and 'too remote and shadowy to shape the course of justice."' (citing Clark v. United States, 289 U.S. 1,¹⁶¹⁶ See ECF No. 252 at 44-45 & nn.227-229; SCO-00455825 (Donald J. Trump Retweet 11/24/2020); SCO-12858284 (Tweet 11/24/2020) (showing Donald J. Trump Retweet); SCO-00455769, SCO-12858342 (Donald J. Trump Retweet 11/26/2020); SCO-04949395 at 3 (Remarks by Mr. Trump on the Presidential Election 12/02/2020); SCO-02244118 at 18-19 (Remarks by Mr. Trump at Save America Rally O1/06/2021). See also A Review of Various Actions by the Federal Bureau oflnvestigation and Department of Justice in Advance of the 2016 Election, U.S. Dep't ofJustice Office of Inspector General (June 2018) at 18 ("[I]n general, the practice has been not to take actions that might have an impact on an election, even if it's not an election case or something like that."), available at https://s3 .documentcloud.org/documents/4515 884/DOJ-OI G-2016-Electio_n-Final-Report.pdf. Blanche Law PLLC 99 Wall Street, Suite 4460 I New York, NY 10005 (212) 716-1250 I www.BlancheLaw.com (1933))) and 704 F. Supp 3d at 213 ("Consequently, to the extent that there are any cognizable 'chilling effects' on Presidential decision-making from the prospect of criminal liability, they raise far lesser concerns than those discussed in the civil context of Fitzgerald. Every President will face difficult decisions; whether to intentionally commit a federal crime should not be one of them.").

¶Ultimately, the Supreme Cou1i ruled that for official powers entrusted exclusively to the President, a President is entitled to absolute criminal immunity and that for other acts "within the outer perimeter of his official responsibility" he is entitled to at least presumptive immunity. Id at 613-614. Specifically, the Court divided presidential acts into three categories: (1) core presidential conduct that Congress has no power to regulate and for which a former President has absolute immunity; (2) other official presidential acts for which the President has at least presumptive immunity; and (3) unofficial conduct for which the President has no immunity. Id at 606, 642. Applying those principles to the original indictment, the Supreme Court concluded that Mr. Trump is "absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials" and involving his "threatened removal of the Acting Attorney General." Id. at 620-621. The Court also concluded that several conversations between Mr. Trump and the Vice President constituted official conduct, but remanded for consideration of whether the Office could rebut the presumption of immunity. Id. at 624-625. As to several other allegations-involving interactions with state officials, private parties, and the public-the Court remanded for the lower courts to determine whether the conduct was undertaken in an official capacity or, alternatively, constituted a private scheme with private actors, as the Office contended. Id. at 625-627.

132

¶The Court also added an evidentiary rule to its immunity framework: official conduct for which the President is immune may not be used as evidence in a prosecution for non-immune conduct. Id. at 630-632. The Court was concerned that "jurors' deliberations will be prejudiced by their views of the President's policies and performance while in office." Id. at 631. Justice Barrett joined the dissenters in disagreeing with that rule, noting, 'The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable." Id. at 655 (emphasis in original) (Barrett, J., concurring in part). Standard evidentiary rules, she explained, "are equipped to handle that concern [about prejudice from admitting evidence of a President's official acts] on a case-by case-basis." Id. at 656. "I see no need," she wrote, "to depart from that familiar and time-tested procedure here." Id.

Unresolved Issues Regarding Presidential Immunity The Supreme Court's decision raises several issues about the scope of presidential

¶immunity that the lower courts, and ultimately the Supreme Court, would likely have had to address before the prosecution could have proceeded to trial. The following discussion illustrates some of the issues that the Court's immunity decision left open and that remam unresolved given the required dismissal of the superseding indictment.

133

¶First, while the Court determined that certain core exercises of presidential power are absolutely immune and gave several examples, see 603 U.S. at 608-609 (pardon power; power to remove presidential appointees; power to recognize foreign nations), 620-621 (supervision of criminal investigations and prosecutions), it left undefined the full scope of that category. Compare id. at 620 (relying in part on the President's responsibility to "take Care that the Laws be faithfully executed" (U.S. CONST. art II, § 3) to find that his investigative and prosecutorial decision-making, and threats to remove the Acting Attorney General, were absolutely immune) with id. at 651 n. l (Barrett, J., concurring) ("I do not understand the Court to hold that all exercises of the Take Care power fall within the core executive power"). The Office's position was that none of the allegations in the superseding indictment implicated core presidential powers.

¶Second, the Court's decision accorded at least presumptive immunity to all non-core official presidential conduct. 603 U.S. at 614-615. That holding left unresolved whether, at some future point, the Court will determine that absolute immunity is required for that category of official acts as well. It also left unresolved the manner of applying its test for overcoming presumptive immunity: i.e., that the government must "show that applying a criminal prohibition to that act would pose no 'dangers of intrusion on the authority and functions of the Executive Branch."' Id. at 615 (quoting Fitzgerald, 457 U.S. at 754); cf 603 U.S. at 667 (Sotomayor, J., dissenting) ("According to the majority, however, any incursion on Executive power is too much. When presumptive immunity is this conclusive, the majority's indecision as to 'whether [official acts] immunity must be absolute' or whether, instead, 'presumptive immunity is sufficient,' hardly matters.") (citation omitted). In its one concrete discussion of that test, the Court described competing arguments about communications between the President and the Vice

134

¶President about the certification proceeding, noting that the Vice President presides as President of the Senate, not in any Executive Branch capacity, and that the President has "no direct constitutional or statutory role" in the certification proceeding. See id. at 622-625. But the Court stopped short of deciding whether any Executive Branch functions were in danger of potential intrusion in that setting and, if so, the nature of such functions. It also did not address whether de minimis intrusions would preclude rebutting the presumption, and how courts should make predictive judgments about potential intrusions (for example, by looking to history, speculating about future presidential behavior, or relying solely on legal materials).

¶Following the remand to the district court, the Office argued that, with respect to the presumptive immunity test, "[t]he analysis should first identify the specific alleged act at issue, and then determine whether criminal liability for the act intrudes on a relevant Executive Branch authority or function, taking care not to 'conceive[] of the inquiry at too high a level of generality."' ECF No. 252 at 87 (quoting Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1141 (D.C. Cir. 2015) (reversing district court in civil immunity case)). The Office's brief emphasized that this approach "recognizes that Executive authority has limits-boundaries imposed by constitutional text, the separation of powers, and precedent-and that application of criminal law to the President's official conduct does not per se intrude impermissibly on Executive Branch authority and functions." Id. at 87-88. With regard to the communications between the President and the Vice President, the Office submitted that "[b ]ecause the Executive Branch has no role in the certification proceeding-and indeed, the President was purposely excluded from it by design-prosecuting the defendant for his corrupt efforts regarding Pence poses no danger to the Executive Branch's authority or functioning." Id. at 89-90.

135

¶Third, in discussing the process of separating official from unofficial conduct, the Court wrote that the analysis is "fact specific and may prove to be challenging." 603 U.S. at 629. The Court's discussion of a President's public communications illustrates those challenges. The Court directed that the status of a President's public communications should be assessed through an "objective analysis of 'content, form, and context."' Id. (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). It also cautioned that "most of a President's public communications are likely to fall comfortably within the outer perimeter of his official responsibilities" while stating that there "may" be contexts in which a President "speaks in an unofficial capacity-perhaps as a candidate for office or party leader." Id. The Court's analysis recognized that, in principle, there is a line between a President's official and nonofficial communications, but the Court gave little detail about when an incumbent President crosses the line between his official role and his candidate role. Cf 603 U.S. at 667 (Sotomayor, J., dissenting) ("In fact, the majority's dividing line between 'official' and 'unofficial' conduct narrows the conduct considered 'unofficial' almost to a nullity."). Upon remand, the Office argued that "[a]t its core, the defendant's scheme was a private one," ECF No. 252 at 88, and that in proving the case the Office would rely on "public Campaign speeches, Tweets, and other public statements and comments" that Mr. Trump made "not as President but as a candidate for office." Id. at 115.

¶Finally, as noted, the Court's decision that presidential immunity precludes the introduction of evidence of immune official acts even in a prosecution for unofficial conduct left open substantive and procedural questions. 603 U.S. at 630-632. In responding to Justice Barrett's disagreement with the Court's evidentiary holding, in which she highlighted her concern about excluding official act evidence in, for example, a bribery prosecution, id. at 655- 656 (Barrett, J., concurring in part), the Court wrote in a footnote that in a bribery prosecution,

136

¶"of course the prosecutor may point to the public record to show the fact that the President performed the official act." Id. at 632 n.3 (majority opinion). "What the prosecutor may not do, however, is admit testimony or private records of the President or his advisors probing the official act itself." Id. Those statements create uncertainty regarding which types of evidence of official acts can be used and which cannot. A further procedural issue involved the scope of any interlocutory appeal from the district court's rulings on immunity. The Supreme Court had emphasized that immunity issues should be "addressed at the outset of a proceeding," 603 U.S. at 636, and presupposed that "a district court's denial of immunity would be appealable before trial," id. at 635. While the parties and the district court agreed that whether the superseding indictment states an offense based on non-immune conduct would be subject to a pretrial interlocutory appeal, the evidentiary component of the Court's immunity ruling left open the question of whether evidentiary determinations regarding potentially immune evidence could be appealed before trial. Further proceedings on remand likely would have provided guidance on this and the other issues described above.

CONCLUSION

¶On remand from the Supreme Comi's decision in Trump, the district court set a litigation schedule whereby the parties would submit briefs regarding whether any material in the superseding indictment was subject to presidential immunity. ECF No. 233. The parties were in the middle of that process when the results of the presidential election made clear that Mr. Trump would be inaugurated as President of the United States on January 20, 2025. As described above, it has long been the Department's interpretation that the Constitution forbids the federal indictment and prosecution of a sitting President, but the election results raised for the first time the question of the lawful course when a private citizen who has already been indicted is then elected President. The Department detem1ined that the case must be dismissed without prejudice before Mr. Trump takes office, and the Office therefore moved to dismiss the indictment on November 25, 2024. See ECF No. 281. The district court granted the motion the same day. ECF No. 283.

137

¶The Department's view that the Constitution prohibits the continued indictment and prosecution of a President is categorical and does not tum on the gravity of the crimes charged, the strength of the Government's proof, or the merits of the prosecution, which the Office stands fully behind. Indeed, but for Mr. Trump's election and imminent return to the Presidency, the Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.

138