Thread by @KatiePhang

Tomorrow, at 10 a.m. ET, we finally will learn what SCOTUS has decided regarding Trump's claim of absolute criminal immunity. He argues that if he has absolute criminal immunity, then his indictment must be dismissed.

Recall the question presented was: "Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office."

Oral arguments (2 hours and 39 minutes) took place on April 25, 2024, almost 10 weeks ago.

Since that date, Trump has been convicted, by a jury of his peers, of 34 felonies in the state of New York. He continues to face indictments by Special Counsel Jack Smith in Florida and DC, as well as by Fulton County DA, Fani Willis, in Georgia.

During those oral arguments, Trump's lawyer, John Sauer, was asked the following question:

JUSTICE SOTOMAYOR: "If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity?"

Sauer's answer:

SAUER: "It would depend on the hypothetical. We can see that could well be an official act."

Sauer also conceded to Justice Amy Coney Barrett that a president's private acts do not get immunity:

JUSTICE BARRETT: "So you concede that private acts don't get immunity?"

SAUER: "We do."

Later in oral arguments, Sauer claimed that the following should occur:

SAUER: "And the Court should remand or -- or address itself but remand for a Brewster-like determination, which is what's official and what's private. The official stuff has to be expunged completely from the indictment before the case can go forward, and there has to be a determination at least on remand of what's official -- a two-stage determination of what's official and what's private."

Special Counsel, Jack Smith, argued in his SCOTUS brief that assuming SCOTUS does not outright reject Trump's position, Judge Chutkan should make "evidentiary rulings and craft appropriate jury instructions for trial clarifying that [Trump] may be held criminally liable based only on the private conduct alleged in the indictment, even though the jury could consider official-acts evidence for limited and specified purposes."

Trump, in his Reply Brief to SCOTUS, argued that if SCOTUS doesn't dismiss the case outright, "it should remand [to Judge Chutkan] to address whether each act in the indictment is shielded by immunity, with evidence if necessary, before any further proceedings."

Based on the oral arguments, the questions posed by the justices, and the arguments set forth in the briefs, I believe SCOTUS will reject Trump's claim of absolute criminal immunity, and will reverse the decision of the appellate court and remand [send back] to Judge Chutkan [the trial court] the case for her to determine which alleged acts in the indictment constitute "official acts" and which constitute "private acts."

Judge Chutkan would also consider whether Trump was acting as an office-holder versus an office-seeker during the alleged conduct.

I also believe that Judge Chutkan will quickly order an evidentiary hearing to take place for the presentation of evidence regarding Trump's conduct as alleged in the indictment.

Obviously, Jack Smith's position will be that all of the alleged acts were private and not official, thereby Trump cannot be immunized. Trump will argue otherwise. Chutkan would then decide and whatever is left of the original indictment would be what Jack Smith would move forward with.

There may be the opportunity for interlocutory appeal (meaning not having to wait until the very end of the case for an appeal to be taken) of Chutkan's determination of what is official/unofficial.

I envision this evidentiary hearing/mini-trial to be an opportunity for Americans to learn the breadth and extent of Trump's criminal conduct. This would occur before November 2024.