Editors’ note: This story was first published in May. It has been updated with recent developments in the election interference case.
If the U.S. Supreme Court rules on Monday that Donald Trump cannot be prosecuted for acts he took as part of his official duties, his Atlanta lawyers are expected to argue that would strip away much of the Fulton County case against the former president.
But it is also possible such a decision won’t make much of a difference to Fulton County’s election interference case. During the high court’s April 25 arguments, Trump’s own attorney acknowledged that some allegations against the former president involve actions that were not taken as part of his presidential duties.
And his concessions correspond with at least two of the 10 felony counts against Trump here, which means they could be considered personal acts not shielded from prosecution. Those counts involve organizing the slate of Republican electors and a federal lawsuit filed by Trump in Atlanta.
The Supreme Court’s decision could impact presidencies for generations to come. During the arguments, the high court’s three liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — appeared disinclined to give much, if any, immunity to a former president charged with crimes.
Even some of the court’s conservative justices sounded skeptical of giving a president blanket immunity and Trump’s attorney backed off such a request.
Official vs. personal
Instead, several of the conservative jurists seemed open to drawing a line to ensure presidents cannot be prosecuted for acts taken as part of their official duties. This outcome would mean Trump could be prosecuted for alleged acts he took as a candidate or for personal reasons in both the election subversion case in Washington and the racketeering case in Fulton County.
“I’m thinking the Supreme Court comes down with the official act versus personal act test,” said Atlanta criminal defense attorney Noah Pines, who is following the case.
“The government would have to allege that the acts in the indictment were non-official, personal acts,” he said. “The president could then file an immunity challenge where he would have the burden of proving the acts, if committed, were official.”
Georgia State University law professor Anthony Michael Kreis noted Superior Court Judge Scott McAfee, who is presiding over the case, would have to decide what alleged acts committed by Trump were part of his official duties and which ones were personal in nature.
“There might be some tricky questions, but I think, by and large, that the key factual allegations of wrongdoing — encouraging the governor and former speaker of the House (David) Ralston to convene the General Assembly to overturn the election, engaging in harassment of poll workers, brow-beating (Secretary of State) Brad Raffensperger — are easily outside the official duties of the president,” Kreis said.
In other words, Trump’s activities as a candidate for president would be private while those he took as part of his presidential duties would be official.
“I think Judge McAfee will have a relatively easy time administering that rule, if that is in fact the rule the Supreme Court devises,” he said.
Trump’s Atlanta attorneys, Steve Sadow and Jennifer Little, have already filed a motion challenging the state’s charges on presidential immunity grounds. Fulton prosecutors have said they will respond to it two weeks after the Supreme Court issues its decision.
The Fulton case
In the Fulton case, Trump stands indicted for allegedly overseeing a racketeering conspiracy to overturn the 2020 election.
He is also charged with nine other felonies, six of which involve organizing GOP officials to cast electoral college votes for Trump even though Democrat Joe Biden had been declared the winner in Georgia. And Trump faces felony charges for filing a false document — a federal lawsuit against Gov. Brian Kemp with unfounded claims of voter fraud — and for making false statements to Secretary of State Brad Raffensperger during the infamous Jan. 2, 2021, phone call and in a Sept. 17, 2021, letter in which he asked the secretary to decertify the election results.
The Fulton indictment also alleges Trump took part in more than 40 “overt acts” — actions that may or may not have been a crime but were made to further the conspiracy. Taken together the felony counts and overt acts alleged against Trump roughly fall into five categories:
- Public statements, such as his false claim on election night that he’d won, and tweets he posted on his Twitter feed about how the 2020 election was stolen.
- Conversations with top officials at the U.S. Department of Justice, asking them to issue statements that the election was corrupt and to “leave the rest to me and the Republican congressmen.”
- Phone calls and meetings with lawmakers in swing states, including Georgia, asking them to appoint electors who would cast electoral college votes for Trump. Other phone calls include Trump reaching out to Kemp and Ralston seeking a special session of the Legislature to overturn the election results.
- Attempts to get Vice President Mike Pence to reject — or decertify —electoral college votes from some swing states or delay the Jan. 6, 2021, joint session of Congress.
- Lining up Republican officials to cast electoral college votes for Trump in Georgia and other swing states.
A dozen of the overt acts are tweets made by Trump after the Nov. 4, 2020, election. In some of them, Trump contended there had been ballot-stuffing and “massive” voter fraud.
In others, Trump strongly criticized Kemp, calling him a “fool” and an “obstructionist who refuses to admit that we won Georgia BIG!” Trump also called on Kemp to resign from office for failing to call a special session of the General Assembly. All of Trump’s Tweets, the indictment alleges, were overt acts “in furtherance of the conspiracy.”
In their motion, Trump lawyers Sadow and Little wrote, “Making statements to the public on matters of national concern — especially matters involving core federal interests, such as the administration of a federal election — lies in the heartland of the president’s historic role and responsibility.”
Credit: TNS
Credit: TNS
Trump’s Atlanta lawyers said his tweets and public statements, “were directly related to his contentions that the federal election was tainted by fraud and that the U.S. Department of Justice had failed to adequately investigate and prosecute fraud in the election.”
“Urging his own Department of Justice to do more to enforce the laws that it is charged with enforcing, and to communicate with state officials and the public about such investigations, is an official act of the president,” they continued.
They also argued that organizing slates of GOP electoral college electors “relates closely to two presidential functions — protecting the integrity of federal elections and urging members of Congress to act in a manner consistent with the president’s view of the public good.”
‘That sounds private’
Their motion, however, was filed three months before the recent Supreme Court arguments, during which Justice Amy Coney Barrett elicited a number of concessions from Trump attorney D. John Sauer. And the answers were sometimes at odds with the claims of Trump’s Atlanta legal team.
For example, Barrett asked Sauer about Trump allegedly conspiring with a private attorney to file the federal lawsuit against Kemp and signing a verification of its accuracy, even though it was littered with false claims. “That sounds private,” Sauer responded. (That private attorney would be John Eastman, who is charged with Trump in Count 27 of the Fulton case for filing a false document.)
Credit: NYT
Credit: NYT
Barrett also asked about the alleged scheme “to submit fraudulent slates of presidential electors.” Sauer’s reply: “I believe that’s private.”
During the arguments, Justice Department attorney Michael Dreeben referred to Trump telling Raffensperger he wanted to “find 11,780 votes” during the Jan. 2, 2021, phone call. “I think if you look at that — that content — it’s pretty clear that (Trump) is acting in the capacity as office seeker, not as president,” he said.
New York attorney Nick Akerman, a former Watergate prosecutor who closely follows the cases against Trump, said his review of the one in Fulton found none of the allegations against Trump is related to his official duties as president.
“This is a real simple case about lying with the corrupt goal of stealing the election,” he said. “All of these acts are directed at the conduct of elections run exclusively by the states over which neither the president nor the federal government has any authority.”
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