Pete Marovich / New York Times, file
President Donald Trump addresses a crowd gathered near the White House hours before the attack on the Capitol in Washington, Jan. 6, 2021. Judge Tanya S. Chutkan will decide whether many of Trump’s actions around the 2020 election were based on official acts he took as president or on unofficial acts in his private role as a candidate.
Wednesday, July 3, 2024 | 2 a.m.
The Supreme Court’s momentous ruling Monday on presidential immunity will reshape the prosecution of Donald Trump in Georgia.
But not any time soon.
The election interference case against Trump and 14 of his allies is largely frozen in place while the Georgia Court of Appeals considers whether to disqualify Fani T. Willis, the Fulton County district attorney leading the prosecution. Earlier this year, Judge Scott McAfee of Fulton County Superior Court allowed Willis to keep the case after revelations that she had a romantic relationship with the lawyer she hired to manage it.
But the appeal of that ruling is likely to take at least several months, and the efforts by Trump and other defendants to get Willis removed from the case may not ultimately be decided until early next year.
Once that is resolved, the Supreme Court’s finding that presidents are immune from prosecution over official actions will be sharply felt in the Georgia case, where it will inform McAfee’s own eventual ruling on a Trump motion seeking immunity from the state prosecution. Trump’s legal team in Georgia filed the immunity motion in January, but all sides had been awaiting the Supreme Court’s ruling for guidance.
McAfee will now have to sort out which of the alleged actions that Trump is being prosecuted for count as official conduct and which count as unofficial under the new guidelines laid out by the high court. A federal judge, Tanya S. Chutkan, will have to do the same sorting for a parallel federal election interference case.
The Georgia indictment, handed up in August, charges Trump and his allies with conspiring to overturn his narrow election loss in the state in 2020. It outlines eight ways the defendants were accused of obstructing the election, including by lying to the Georgia state Legislature about claims of voter fraud and creating fake pro-Trump electors.
A call that Trump made early in January 2021 to Georgia’s secretary of state, Brad Raffensperger, in which he pressured Raffensperger to find enough votes to overturn his loss, is seen as unlikely to be considered an official act.
But Trump’s calling on Vice President Mike Pence to intervene in the counting of electoral votes in Congress on Jan. 6 is another matter. So are discussions Trump had about challenging the election results with two of his fellow defendants in Georgia: Jeffrey Clark, who was a Justice Department official, and Mark Meadows, who was the White House chief of staff.
In his majority opinion, Chief Justice John Roberts wrote that Trump was “absolutely immune from prosecution” for “alleged conduct involving his discussions with Justice Department officials.” Beyond that, the chief justice created guideposts to determine whether other types of presidential conduct should be considered immune from prosecution as well.
McAfee’s parsing of what counts as an official act and what does not, and any appeals of the judge’s findings, could delay the Georgia case for many more months, potentially pushing off any trial until 2026. Regardless, if Trump is elected in November, it is seen as highly unlikely that he would be put on trial during his presidency, though that, too, would have to be fought out in court.
Separately, if Willis were disqualified by the appeals court, the entire case would be left in limbo.
Monday’s ruling could also mean that Trump would have to be tried separately from Clark and Meadows. Evidence used against the two former Trump aides might be considered inappropriate to include at a trial of the former president, if it involved what were considered official presidential acts.
Some evidence against Clark “would likely include internal executive branch conversations and official presidential actions,” said Anthony Michael Kreis, a law professor at Georgia State University. While Roberts singled out contacts with the Justice Department as immune, Kreis said “the Meadows question is more complicated” and may involve “a prosecutable category of conduct.”
In their January motion, Trump’s lawyers in Georgia argued that he had been charged over “acts that lie at the heart of his official responsibilities as president,” and that because of immunity, such charges “should be dismissed with prejudice.”
Now, the Supreme Court ruling has provided firmer ground for such claims.
“Some charges should survive today’s decision,” Melissa Redmon, a law professor at the University of Georgia, said Tuesday. She pointed out that the Trump team’s January motion acknowledged that two of the state counts against him relate to “post-presidency conduct,” as the motion put it. (One of those counts was quashed earlier this year by McAfee, a decision that has been appealed by Willis.)
Other aspects of the original Georgia indictment may be harder to categorize as official or unofficial. They include the charges related to the Trump campaign’s deployment of fake electors in swing states that he lost, which is central to election prosecutions in Arizona, Michigan, Nevada and Wisconsin, as well as in Georgia.
For Trump and his allies, the Supreme Court ruling was a vindication.
“MANY OF THESE FAKE CASES WILL NOW DISAPPEAR, OR WITHER INTO OBSCURITY,” Trump wrote on Truth Social.
Rachel Cauley, a spokesperson for the Center for Renewing America, a Trump-aligned policy organization where Clark serves as director of litigation, said that the ruling “confirms immunity in resounding and unmistakable terms.”
Efforts by Clark and Meadows to remove their Georgia prosecutions to federal court have thus far failed, with courts rejecting their arguments that they were acting in their official capacity.
For some critics of Trump and his conduct, the Supreme Court ruling and its likely effects underscore that federal and state prosecutors moved too slowly to hold him to account. Willis officially started her investigation in February 2021, but took her time as she built a complex racketeering case. The Department of Justice indicted Trump on election interference last August, around the same time that the Georgia charges were brought.
None of the four other states that have brought criminal election cases over the last year have charged Trump.
“In retrospect, there should have been a much faster effort all around to bring these matters to a head in 2021 at the federal and state level,” said Norman Eisen, who served as special counsel to the House Judiciary Committee during the first Trump impeachment.
“Depending how it all turns out, Donald Trump may yet be tried in 2025 or 2026. Alternatively, he may never be tried,” Eisen said, adding, “Future historians will say the failure of a relatively small number of people to initiate legal action in response to an obviously unlawful attempted coup dramatically changed the course of American history, and not for the better.”
This article originally appeared in The New York Times.
