Thread by @lee_kovarsky

SUMMARY OF WHAT SCOTUS HELD IN IMMUNITY CASE (NO EDITORIALIZING UNTIL END)

Think three buckets:

First, absolute immunity for official acts that are core presidential functions (pardon, removal of executive officers);

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Second, presumptive immunity for official acts that are NOT core presidential functions (everything official that is not in (1)).

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That presumption is overcome by a showing that “applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch.”; and

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Third, no immunity for unofficial (private) conduct.

Then move on to how the Court classified each set of allegations in the indictment – i.e. what bucket each set of allegations belongs in.

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Pressure on DOJ officials (Jeff Clark) is absolutely immune b/c control of AG is core function.

Pressure on Pence is official conduct may only get presumptive immunity, so remanded for determination of whether it’s a core function.

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Remaining allegations – communication with various state and party officials, and public communication around January 6 – remanded for determination if official or unofficial.

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In each case on remand, if determination is that some indicted conduct is official, Judge Chutkan will also have to decide whether the conduct is “core” or “non-core,” and if the latter whether the presumption of immunity is overcome.

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Finally, the prosecution can’t rely on immunized conduct as evidence for something else.

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So, for example, Trump’s conversations with DOJ officials, because he has absolute immunity, cannot be used to corroborate his state of mind or show his awareness of the scheme proven through other conduct alleged in the indictment.

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NOW, FOR SOME THOUGHTS:

(1) There will not be a trial before the election; there will be an immunity hearing and an interlocutory appeal.

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(2) Unlike trial, which would have had to wait three months – based on Judge Chutkan’s declared preferences – the immunity hearing might come sooner.

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(3) This is a win for Trump relative to expectations, and with respect to timing, but unless the prosecution is dismissed (a big if, see November) then he will likely stand trial.

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(4) In terms of what’s actually immunized, nobody is surprised about the DOJ intimidation. The biggest surprises are the idea that the convos with the Veep might be “core” functions and that some of the other allegations might be “official acts.”

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(5) I don’t really understand some of the logic in Part III-C of the opinion, for wonky reasons. But if official acts can’t be used to prove anything, I don’t understand how a bribe-for-pardon scheme could be proven by pointing to the “public record” of the pardon.

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(6) As expected from yesterday's Fischer opinion, the Court leaves it to Judge Chutkan to decide whether the prosecution can go forward on the two counts under 18 USC 1512(c) - highlighting the language that she would need to use to adjudicate the question.

/e