Jack Smith's Trump prosecutions will survive SCOTUS, but barely, experts say

  • The immunity decision will delay and diminish Jack Smith‘s two Trump prosecutions, experts predict.

  • In the documents case, Trump can claim that “declassifying” them,  back in DC, was an official act.

  • In the J6 case, he can seek immunity for allegations involving talking to another federal official.

It’s been a pretty bad day for Special Counsel Jack Smith.

Both of his prosecutions of Donald Trump — the Mar-a-Lago documents case in Florida, and the insurrection case out of Washington, DC — will be delayed and diminished by Monday’s United States Supreme Court’s immunity decision, legal experts predict.

The SCOTUS decision found that former presidents are presumptively immune from prosecution for acts they took while in office. It leaves it to lower courts to decide whether Trump conspired to overturn the 2020 election.

That review of the insurrection case — by the DC Circuit Court of Appeals and, likely, the Supreme Court once again — will take many months.

Meanwhile, Trump can be expected to use his new immunity superpowers to also challenge the documents case, including by reviving his claim that he somehow “declassified” the papers back in DC, in what was an “official” act.

“With the January 6th case, the one that was at issue here, this makes it absolutely clear there’s no way this is going to trial before the election,” said Cliff Sloan, a Georgetown University law professor and constitutional law expert.

“For the Florida case, the decision has no direct impact,” noted Michel Paradis, an attorney who teaches national security and constitutional law at Columbia Law School.

“But it is likely to disrupt and complicate the prosecution, in so far as there will be a new round of arguments on how the Supreme Court decision affects the transportation of documents, etc.,” he said.

Sloan said that it’s possible that Trump’s attorneys make new arguments in the classified documents case based on the SCOTUS ruling, but explained, “It’ll be more difficult because the core of that case has to do with actions he took when he was no longer president with regard to classified documents.”

Still, Trump can now argue that before he left office, he somehow “declassified” the documents, an official act that now cannot be challenged.

Prosecutors say Trump broke federal law when he took documents with him from the White House to Mar-a-Lago, his Palm Beach, Florida, estate and private club.

The Florida litigation will be all the more complicated, Paradis added, “because the Supreme Court also held that you can’t inquire into a president’s ‘motives’ for taking any official act. And so precisely how that will work is up in the air at the moment.”

According to Monday’s decision, “In dividing official from unofficial conduct, courts may not inquire into the president’s motives.”

The court continued, “Such a ‘highly intrusive inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose.”

Circling back to the January 6 case, one of that indictment’s allegations is almost certain to now be challenged as an official act for which he is immune from prosecution, said Paradis.

Trump is accused of trying to pressure his acting attorney general and the Justice Department to overturn the 2020 presidential election results. Those discussions “are readily categorized” as official acts, Monday’s decision states.

This is true even if Smith’s claims are correct, and Trump’s efforts were improper, the decision said.

“Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials, the decision said.

“Other allegations — such as those involving Trump’s interactions with the vice president, state officials, and certain private parties, and his comments to the general public — present more difficult questions” that will now be argued over, the decision also states.

“The biggest difficulty will be proving that something is not an official act,” noted Paradis.

“The way the Supreme Court set up the new rule is that most everything the president does is ‘presumptively immune,'” he said.

“It then falls to the prosecution to show that the ‘presumptively’ official act was in fact ‘unofficial.’ However — and this is where Justice Barrett broke with the majority — prosecutors can’t inquire into the president’s motives and are also largely prohibited from inquiring into the president’s communications,” he added.

“So you have to show what the president intended while being forbidden from proving what was in his mind,” Paradis said.

By that new measure, any communication Trump has with another federal official is, for all practical purposes, immune from prosecution, he said.

In its decision, Sloan said, the Supreme Court was “unwilling to say that even a single allegation in the indictment” against Trump over his over his efforts to overturn the 2020 election “was an example of an unofficial act.”

“It was willing to say some things were clearly official acts, but it was unwilling to give a single example of something that was unofficial,” said Sloan, adding, “Courts would have to sort out what’s official and what’s unofficial, and if it’s official, what kind of official action is it?”

“In addition to everything else, it’s a kind of complicated structure, is very unpredictable, and it just puts it in the hands of courts to make these judgments,” Sloan said.

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