Trump's DC Election-Stealing Case: What's Even Left Of It?

U.S. v. Trump goes back to D.C. as a defleshed skeleton.

Photo by Sabina Music Rich on Unsplash

Now that we’ve had a minute to partially digest a sandwich, here’s the deeper, disturbing-er details of the Little Donny Fuckface Is Immune and Presidents Are King decision. What parts of the DC election interference case, AKA United States of America v. Donald J. Trump, are off the table now, and what’s left?

Answer, most of it, and not much. The case might get on the calendar before November, but the Supreme Court has taken away the Government’s ability to use pretty much all of the evidence against him. And because SCOTUS has given Judge Tanya Chutkan these new, stupid questions of fact to interpret based on the presumption that Donny has all the benefit of every doubt, any progress on the case can be jammed up with appeals.

Trump is immune for “official acts” and the president has no role in elections. Case closed, right? It should have been. But then there’s this from Roberts:

“Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”

So anything and everything involving co-defendant Jeffrey “we’ll call you when there’s an oil spill” Clark will be off the table for prosecutors to present. You’ll recall Trump tried to install Clark as acting attorney general to help him overturn the election, until every single official at the DOJ threatened to resign over it. Ditto anything Trump had to say to former (acting) Attorney General Jeffrey Rosen, his deputy Richard Donoghue, and former US Attorney in Atlanta BJ Pak. None of that can be brought up in court now. Not even when Trump directly told Justice Department officials to lie: “Just say that the election was corrupt and leave the rest to me and the Republican congressmen.”

Also, "Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the VP. [...] The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.”

So, any discussions Trump had with Pence and his legal team are automatically off the table if they happened before January 20. And any discussions he had with White House officials. No testimony from Cassidy Hutchinson, Mark Meadows, or anyone working in the White House in his filthy orbit. If it was “official,” it is cool.

Noted Justice Ketanji Brown Jackson in her dissent, morbidly, “ While the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death.”

According to this decision, that would be no problem.

And, the Government can’t talk about Trump’s motives in court: “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.” Plus, says Roberts, a prosecutor may not “admit testimony or private records of the President or his advisers probing the official act itself.” So even if the former President is on tape telling Mark Meadows, “hey, I’m going to do a coup!” that would not be admissible.

And, the Government cannot use evidence of a president's official conduct during a jury trial “to help secure his conviction, even on charges that purport to be based only on his unofficial conduct.” They say that "the 'intended effect' of immunity would be defeated."

So what is even left for the DC circuit to work with? “The indictment’s remaining allegations involve Trump’s interactions with persons outside the Executive Branch: state officials, private parties, and the general public.[ …] Trump can point to no plausible source of authority enabling the President to take such actions. Determining whose characterization may be correct, and with respect to which conduct, requires a fact-specific analysis of the indictment’s extensive and interrelated allegations. The Court accordingly remands to the District Court to determine in the first instance whether Trump’s conduct in this area qualifies as official or unofficial.”

So, some of his tweets and “Truths” may be allowed. As long as Special Counsel Jack Smith’s team doesn’t question his motives. Wrote Roberts, “There may, however, be contexts in which the President speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of ‘content, form, and context’ will necessarily inform the inquiry.” 

Long story short, that DC case is tits up, floating in the Alitos’ lagoon.

Can we expand the court already? Well, not right this second. The number of Supreme Court justices is set by Congress. In May of 2023 a group of US Senate and House Democrats reintroduced the Judiciary Act of 2023, a bill that would add four seats to the US Supreme Court, bringing the bench from nine to 13 justices, and the bill promptly went to the Judiciary Committee to die. It could come back, but first Democrats would need to take back the House, and that’s not going to happen any time before November, by which point it may be too late for this case.

But the need for this needs to be blasted at bullhorn volume every day between now and the election. These horrors can be fixed. But only if Joe Biden retakes the presidency, we keep (and preferably expand our lead in) the Senate, and we take back the House. If that doesn’t happen, it’s no exaggeration to say that November’s election will likely be our last.

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