The Supreme Court’s belated decision this week regarding presidential immunity is a defeat for presidential accountability, leaving Donald Trump, the only former president for whom the question of criminal immunity has been pushed this far, escaping legal consequences before the general election for his actions involving efforts to overturn the 2020 election.
The decision carves out absolute immunity for core presidential functions, including ominously questionable interactions with the Justice Department alleged to be illegal in the indictment from the special counsel Jack Smith. The court also creates a presumption of immunity for other official actions alleged in the Smith indictment.
By not deciding the case more than six months ago, when Mr. Smith first raised the issue to the court, it has also provided Mr. Trump de facto immunity. The court clearly believed that it had to weigh in on the scope of criminal immunity for a former president. But it could have weighed in then; the court has kept the criminal case on hold since December.
But all is not lost. A trial might not happen, but a legal proceeding that will give voters some of what they want and need could still take place.
A full trial before the general election in November is surely off the table, but Judge Tanya Chutkan of U.S. District Court in Washington is now authorized to hold, in short order, an evidentiary hearing, replete with important witness testimony. That hearing would not replace a full trial and verdict — but at this point it is the best and last means to make public crucial evidence for voters to hear before Election Day.
With the stay lifted by the Supreme Court, Judge Chutkan can hold a prompt hearing on the key issues left open by the ruling: what allegations in the indictment are core official functions entitled to absolute immunity and which are not.
In its decision, the Supreme Court concluded that Mr. Trump’s interactions with the Justice Department are absolutely immune. But it left to the trial court the factual question as to how to categorize Mr. Trump’s interactions with Vice President Mike Pence (particularly in the latter’s role on Jan. 6 as president of the Senate, which is not an executive branch function) and with state officials, leaving to the district judge to determine if a presumption of immunity might apply here or not after analyzing the full context of the allegations.
A model for such a hearing can be found in the Georgia state and federal courts that wrestled with an analogous factual issue, namely whether Mr. Trump’s chief of staff Mark Meadows could move his case to federal court because he was acting in an official executive branch capacity when he helped arrange a call with Georgia election officials to discuss the outcome of the presidential vote. Both the defense and the prosecution called witnesses at a factual pretrial hearing.
The lower courts rejected Mr. Meadows’s testimony and legal position that the election-interference charges against him involve actions undertaken in an official capacity, a decision affirmed unanimously by a panel of the 11th Circuit.
A factual hearing by Judge Chutkan can decide a host of questions about the actions Mr. Trump is accused of, including if some were undertaken in his personal capacity and thus appropriate for a criminal trial. Was Mr. Trump acting in this capacity when he asked the Georgia secretary of state, Brad Raffensperger, to “find” votes? When he allegedly sought to compile slates of fake electors? When he importuned his vice president to not count the electoral votes? And in his communications in the form of social media posts and a public address as a crowd gathered on Jan. 6?
Mr. Smith could call to the stand many of the same witnesses he presumably would at the trial itself: the White House counsels who may have refused to participate in such actions and advised against its legality; the Trump campaign officials who refused to go along with the fake elector scheme; and a vice president who rejected the idea that he had the authority to refuse or even delay the counting of electoral votes.
These witnesses could provide new and important evidence that was not part of the congressional Jan. 6 hearings. There is good reason that this evidence was not previously disclosed: There is a world of difference between the tools available to the Justice Department and congressional committees to procure full and candid testimony from witnesses. Mr. Pence, for example, did not testify at all before Congress but was required to testify before Mr. Smith’s grand jury.
Other witnesses invoked dubious privileges before Congress that kept from public view direct conversations with Mr. Trump, but Mr. Smith has by all accounts been tenacious in defeating bogus privilege claims.
A pretrial hearing like this could start very soon. This type of hearing is routinely done in connection with federal criminal cases on a wide range of issues, most commonly motions to suppress evidence.
It does not need to be delayed, as any trial would be, by a roughly 90-day window previously established by Judge Chutkan for pretrial motions, discovery and trial preparation. As might be expected, Mr. Trump is likely to insist on a delay of the trial itself. And he would have a point.
Although Mr. Trump’s defense counsel will most likely object to anything that advances the case, like an evidentiary hearing, that will be a tough argument when the point of such a hearing is to protect him from having to stand trial on matters on which he is immune under the Supreme Court’s newly minted definition.
The benefit of an evidentiary hearing would be enormous, giving the public at least some information it needs before going to the polls in November. The hearing would permit the airing, in an adversarial proceeding with full due process for Mr. Trump, evidence that goes to the heart of the most profound indictment in this nation’s history.
Andrew Weissmann teaches at the New York University School of Law and is a co-author of “The Trump Indictments: The Historic Charging Documents With Commentary.” He was a senior prosecutor in Robert Mueller’s special counsel investigation and is a co-host of the podcast “Prosecuting Donald Trump.”