Two days after Christmas in 2020, President Donald Trump met with the top two officials at the U.S. Department of Justice. Angry about his loss to Democrat Joe Biden, Trump allegedly told them, “just say that the election is corrupt, and leave the rest to me and the Republican congressmen.”
The statement was included in Fulton County’s indictment of Trump, evidence, prosecutors said, that the president had solicited false statements. It was one of dozens of actions Trump took that undergirded the racketeering and other criminal charges against him in Georgia.
But the U.S. Supreme Court’s landmark ruling Monday means it won’t be heard by a jury weighing charges against Trump. Under the high court’s decision, the president’s conversations with Justice Department attorneys are immune from prosecution.
The high court’s 6-3 ruling, which grants a president broad immunity for actions he takes as part of his official duties, will eviscerate some of Fulton County’s election interference case against Trump. And it will certainly lead to a no-holds-barred courtroom battle to decide which parts of the indictment remain and which ones must go.
The high court was straightforward in its ruling about the Justice Department contacts. But it was less clear about other key parts of the Georgia case — that Trump spread falsehoods and strong-armed state officials in an effort to steal the 2020 election.
Trump’s Atlanta attorneys are expected to argue that all of the alleged criminal acts facing the former president were committed as part of his core official duties, which the high court said cannot be subject to prosecution. The Fulton District Attorney’s office will contend that most, if not all, of the alleged acts were carried out by Trump the candidate, not by Trump the president.
It will require some careful and difficult sifting of the facts by Fulton County Superior Court Judge Scott McAfee, who is presiding over the case.
Credit: TNS
Credit: TNS
One thing McAfee may not consider is the president’s motives.
Such an inquiry, the court said, “would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose.”
University of Pennsylvania law professor Claire Finkelstein, who condemned the high court’s decision, said this greatly complicates the ensuing judicial review to determine what was an official act as opposed to a private or personal one.
“I am concerned about the Georgia case,” she added. “Trump has always made the argument that he was just checking, in his official capacity, to make sure there was no fraud in the election. And the court contemplates that there is no check on whether or not his argument is actually true.”
That means it is possible there would be no judicial review if Trump actions were part of his constitutional duties as president, which are on an even higher tier of protection than his official duties, Finkelstein said.
But New York attorney Nick Akerman, a former Watergate prosecutor, said he believes the bulk of the Fulton case against Trump will remain intact.
“He had no business getting involved in these state elections,” he said. “This was all political campaign stuff. It was all about the campaign. It had nothing to do with his official acts.”
In the Fulton case, Trump faces 10 counts. The most serious one is allegedly orchestrating a racketeering conspiracy — a so-called enterprise — to change the outcome of the 2020 presidential election. To make their case, prosecutors will have to prove there was an agreement among the defendants and that two or more “racketeering acts” were committed to achieve that goal.
The indictment alleges that Trump engaged in roughly 40 overt acts and acts of racketeering activity in furtherance of the conspiracy. Those acts can be summed up in five categories:
- Public statements: Those include Trump’s false claim on election night that he’d won, and tweets he posted on his then-Twitter feed about how the 2020 election was stolen. In its decision, the Supreme Court said “most of a president’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.”
- Conversations with DOJ officials: The Supreme Court said Trump “is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”
- Contacts with elected officials: This covers Trump’s phone calls and meetings with state legislators, governors and others in swing states, including Georgia, asking them to appoint electors to cast Electoral College votes for Trump. Other phone calls include Trump reaching out to Gov. Brian Kemp seeking a special session of the Legislature to overturn the election results. The high court said a lower-court judge should conduct a “fact-specific analysis” to determine whether the phone calls were, as Trump claims, part of his official duties to ensure election integrity or, as prosecutors see it, not part of his official duties because there was no authority permitting Trump to take such actions.
- Trump electors: Lining up Republican officials to cast Electoral College votes for Trump in Georgia and other swing states. The Supreme Court said the same “fact-specific analysis” should be made to determine whether this was an official or unofficial act.
- Vice President Mike Pence: Attempts to get Pence to decertify Electoral College votes from some swing states or delay the Jan. 6, 2021, joint session of Congress. The Supreme Court said whenever the president and vice president discuss their responsibilities, they engage in official conduct. For this reason, the opinion said, Trump’s “is at least presumptively immune from prosecution for such conduct.” And it said it will be the prosecution’s burden to rebut that presumption and to prove that Trump’s actions “would pose any dangers of intrusion on the authority and functions of the executive branch.”
In addition to the racketeering conspiracy count, the Fulton indictment charges Trump with six counts that have to do with the GOP electors casting votes for Trump at the state Capitol on Dec. 14, 2020. Such counts accuse Trump and others of conspiring to impersonate a public officer, commit forgery and make false statements and writings.
Trump is also accused of filing a false document in a Dec. 31, 2020, federal lawsuit that erroneously claimed that tens of thousands of illegal votes were cast in Georgia by felons, people not old enough to vote, people who were not registered to vote, dead people and people who had illegally registered to vote. During arguments before the high court in April, Trump attorney D. John Sauer conceded that filing that lawsuit constituted private, not official, conduct.
Trump is also accused in two other counts of making false statements. One is during his infamous Jan. 2, 2021, phone call with Secretary of State Brad Raffensperger in which he made numerous claims of election fraud that were untrue. The other allegedly occurred on Sept. 17, 2021 — when Trump was no longer president — when he wrote in a letter to Raffensperger that “the number of false and/or irregular votes is far greater than needed to change the Georgia election result.”
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