Supreme Court’s Trump immunity ruling shows risk of Jack Smith’s approach (2024)

The ruling leaves some conservative lawyers questioning special counsel Jack Smith’s decision last year to indict Trump for a range of actions leading up to the Jan. 6, 2021, riot at the U.S. Capitol. Those charges ultimately led to a Supreme Court ruling weakening not just Smith’s authority but that of future special counsels who investigate presidents.

The high court ruled 6-3 along ideological lines last week that presidents are immune from criminal prosecution for “official acts,” while adding that they may still be prosecuted for unofficial acts. The ruling did not offer a clear line between the two, and the justices may have to settle further disputes about that — including in Trump’s four criminal cases.

Many legal experts see the historic ruling as the latest salvo from conservative Supreme Court justices who have long believed that federal prosecutors often go too far in the pursuit of alleged wrongdoing by elected officials. The decision will significantly limit what evidence prosecutors may present in Trump’s D.C. case, and is already prompting new challenges to his felony conviction in New York and his classified documents indictment in Florida. It will probably lead to fresh motions to dismiss or limit the state counts he faces in Georgia for alleged election interference, as well.

“The conservative majority has a lot of skepticism of prosecutorial discretion, and this immunity case is yet another offshoot of this ongoing suspicion or dislike,” said Jessica Tillipman, an associate dean at George Washington University Law School.

While many lawyers see the ruling as a dispiriting setback that puts the president at least partially above the law, conservative lawyers said the decision was a predictable comeuppance for Smith and other Justice Department officials who have been repeatedly reined in by the Supreme Court.

“Smith’s team pushed the court into adopting a legal rule that massively constrained prosecutorial power vis-à-vis former presidents, not just for Trump but for all future presidents,” said James Burnham, a former law clerk for Justice Neil M. Gorsuch who has also worked at the Justice Department and Trump White House.

Attorney General Merrick Garland appointed Smith as special counsel to add a layer of independence to the Trump investigation in late 2022, once it became clear Trump would again run for president in this year’s election. Trump and his allies have challenged Smith’s appointment as unlawful — a long-shot argument that failed with previous special counsels but drew notable support from Supreme Court Justice Clarence Thomas.

Democratic lawmakers, Trump critics and some outside experts had been clamoring for criminal charges after nationally televised congressional hearings that examined Trump’s conversations with top aides at the White House and Justice Department about pursuing unfounded claims of election fraud, conversations with then-Vice President Mike Pence, and efforts to submit slates of pro-Trump electors to cast votes in his name from key states Biden had won.

Trump faces four counts in the election interference case: conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempting to obstruct an official proceeding; and conspiracy against rights. His lawyers argued he should be immune from prosecution for actions he took as president, and that legal argument is what made its way to the Supreme Court.

The special counsel and the Justice Department, Burnham said, overplayed their hands by charging Trump based on his discussions with Justice Department officials and his vice president — government officials whose communications with the White House can be at the heart of a president’s job.

Burnham called the indictment “a prime example of the Justice Department overreaching and ending up miles behind where it began.”

“Smith has nobody to blame but himself.”

A spokesman for Smith declined to comment. In brief remarks when he announced the indictment, the special counsel said the violence on Jan. 6, 2021, was “fueled by lies. Lies by the defendant targeted at obstructing a bedrock function of the U.S. government, the nation’s process of collecting, counting and certifying the results of the presidential election.”

Burnham is one of several conservative lawyers who follow the Supreme Court closely and saw particular meaning in a reference that Chief Justice John G. Roberts Jr. included when writing the ruling in Trump’s immunity case.

Roberts mentioned a 2016 Supreme Court decision, one he also wrote, in which the court unanimously overturned the conviction of former Virginia governor Robert McDonnell, a Republican.

The McDonnell case stemmed from more than $175,000 in loans and gifts, including a Rolex watch, vacations and partial payments for a daughter’s wedding reception, that the governor and his family received from a businessman who wanted state universities to perform clinical tests on a dietary supplement his company had developed.

Burnham was part of the defense team in that case; Smith was the head of the Justice Department’s public integrity section, which oversaw the McDonnell investigation. One of the top prosecutors Smith has recruited to the special counsel’s office was a prosecutor at McDonnell’s trial.

In the McDonnell ruling, Roberts wrote that the Justice Department’s prosecution of the governor, on allegations of doing favors in exchange for lavish gifts, “could cast a pall of potential prosecution” over government officials engaged in campaign fundraising, social events and constituent services. Roberts cited that phrase in the Trump decision, raising a similar concern that a president could be unfairly hamstrung in office by the fear of prosecution unless there is immunity for official acts.

“The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under ‘a pall of potential prosecution’ … raises ‘unique risks to the effective functioning of government,’” Roberts wrote in Trump v. United States.

In the McDonnell case, Roberts found that prosecutors had defined “official acts” too broadly; in the Trump decision, he took the position that prosecutors had considered the question too narrowly. But in both cases, Roberts concluded prosecutors overreached, exceeding the authority and intent of the criminal statutes.

Tillipman, the GWU law school dean, agreed that the McDonnell decision is important in understanding the Supreme Court’s thinking on corruption cases, but decried its reasoning as an example of what she called “the ongoing weakening of how we handle corruption in the United States.”

Over many years of such decisions, she said, “it’s getting worse and making it more difficult for the U.S. to maintain credibility in the global fight against corruption. It’s really problematic.”

The federal charges against Trump include that he pressured his own Justice Department and threatened to replace his attorney general if senior department officials didn’t support him in his unfounded claims of massive voter fraud. Roberts’s opinion took particular aim at those allegations, saying such conduct should be considered off-limits in any criminal case against a former president.

That part of the case was based on a bad legal theory that led to a bad indictment, which led to a bad Supreme Court opinion, argued Sarah Isgur, a Justice Department spokeswoman during the Trump administration who now hosts a legal podcast called “Advisory Opinions.”

“You can’t prosecute the president for wanting to switch out his attorney general — that whole theory was nuts,” Isgur said. “I don’t like this opinion but I don’t think it would exist but for prosecutors charging it this way.”

Current and former federal law enforcement officials said prosecutors have to apply the law as they understand it, and it is not practical to spend much time and energy during an investigation trying to predict how the high court may decide to redefine the rules — potentially years after a trial.

The tensions between how the Justice Department and the Supreme Court see corruption prosecutions date back to at least 1987, said Sharon Fairley, a former federal prosecutor who is now a law professor at the University of Chicago. That’s when the high court ruled the federal mail fraud statute does not cover “schemes to defraud citizens of their intangible rights to honest and impartial government.”

“I think the Justice Department does try to walk that fine line, but there’s probably always going to be some concern,” Fairley said. “The court definitely uses its ability to interpret the statutes to rein the Department of Justice in and send the message that we have to be very careful on intruding on people’s ability to do politics.”