Legal expert: SCOTUS "invented a new rule" that could even give Trump immunity for "unofficial acts"

Donald Trump's classified documents case in Florida could hinge on how courts define what constitutes an official presidential act under a landmark Supreme Court ruling outlining presidential immunity, according to a legal expert.

The Supreme Court last week ruled 6-3 that presidents have "absolute immunity from criminal prosecution" for acts that fall within the "exercise of his core constitutional powers he took when in office." Presidents, according to the ruling, have "at least presumptive" immunity from other official acts, and no immunity for unofficial acts.

Trump pleaded not guilty last year to 40 criminal counts stemming from the discovery of classified documents at Mar-a-Lago after he left office. 

His lawyers argue that the Supreme Court's ruling "guts" special counsel Jack Smith's own theory of presidential immunity. Trump's team wants to prevent prosecutors from using evidence that concerns Trump's "official acts" in any trial.

"The million-dollar question now is how the president's conduct is categorized," University of Miami School of Law professor Caroline Mala Corbin told Salon.

"If what he did is considered official conduct, then he has either absolute immunity or at least a presumption of immunity," she said. "And a presumption that will be very difficult to rebut."

U.S. District Judge Aileen Cannon — who is presiding over the documents case — is now set to weigh whether Trump had immunity for any alleged acts.

She paused upcoming court deadlines for prosecutors and Trump's team, and gave special counsel Jack Smith until July 18 to respond to Trump's motion claiming presidential immunity. A reply from Trump's team is due July 21. 

The grand jury's indictment includes 32 counts of unauthorized possession and retention of national defense documents, along with counts that allege Trump conspired to conceal documents from FBI investigators.

On Friday, Trump's lawyers asked Cannon to decide whether the alleged conduct in the documents case is official or unofficial.

In Trump's motion, his lawyers Todd Blanche and Christopher Kise pointed out that Chief Justice John Roberts — who authored the majority immunity ruling — said that "questions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding."

Trump's lawyers said the indictment concerns "important Presidential powers" including meeting with foreign relations leaders, overseeing international diplomacy and intelligence gathering and responsibility for Executive Branch actions.

Earlier this year, Trump's lawyers argued that 32 criminal counts are based on official acts — including Trump deciding to "retain" the documents by having them "removed from the White House" while he was still president.

"The timeframe alleged for each of Counts 1 – 32 begins on January 20, 2021," reads his lawyer's motion. "President Trump was the Commander in Chief until noon that day."

Trump's lawyers said he had the authority to designate the records as personal under the Presidential Records Act, and that he could declassify records under Article II of the Constitution and Executive Order 13526.

Corbin said whether Trump will have absolute immunity for official acts depends on whether Cannon determines he was acting pursuant to a power he shares with Congress. 

She pointed to the ruling, which said: "Not all of the President’s official acts fall within his 'conclusive and preclusive' authority. The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive constitutional authority do not extend to conduct in areas where his authority is shared with Congress."

Corbin said the Supreme Court's ruling lacked detailed parameters of what constitutes an official — and core — presidential act.

"I think they defined official conduct expansively, but not definitively," she said. "So I think there are a lot of questions that remain."

Pace Law School professor Bennett Gershman said the documents Trump removed belonged to the National Archive.

Trump's possession and use of those documents as president did fall within the "outer perimeter" of his official duties, according to Gershman.

"But will a court find that his retention of the documents after he left office reasonably could be considered an official act of his presidency? Or would a court more likely conclude that his retention of these documents after he left office was a purely private and personal action on his part having nothing to do with his presidency or with any official acts of his presidency?" Gershman told Salon.

Gershman said it's "much more reasonable" for a court to conclude that Trump's retention of the documents falls into the unofficial bucket.

"The Supreme Court’s emphasis on affording a president extremely broad immunity is to allow the president to do his job energetically and fearlessly without tempering his decision-making over fears of prosecution," Gershman said. "Trump, when he decided to take the documents, had no concern over how the retention and possession would affect his presidency. "

Gershman added: "The way Trump mishandled the documents — storing them in his bathroom, showing them to guests at his house, losing some of them — suggests he didn’t think these documents were official or that he was possessing in an official capacity."

Former federal prosecutor Andrew Weissmann said the Supreme Court's ruling won't "jeopardize the case altogether" — but could limit evidence used by prosecutors.

"The hurrendous [sic] SCOTUS immunity decision's effect on the Trump MAL case: it may restrict certain evidence, but not jeopardize the case altogether as it is about conduct after Trump was president (unlawful retention of docs and obstruction)," Weissmann wrote on X. "But certain allegations in the indictment may be struck."

Weissmann pointed to half a dozen paragraphs in the Florida indictment that outlines the alleged conduct, including Trump gathering official documents and other materials in cardboard boxes in the White House.

The indictment also mentions Trump receiving intelligence briefings from high-level government officials and regularly receiving classified intelligence information in the "President's Daily Brief."

Trump issued a statement in 2018 stating he has a "unique, Constitutional responsibility to protect the Nation's classified information, including by controlling access to it."

And as he prepared to leave the White House in January 2021, the indictment says he and White House staff packed boxes containing "hundreds of classified documents" that were brought to Mar-a-Lago.

Weissmann pointed out that the Supreme Court's ruling itself opened the door to impact proceedings involving unofficial acts.

"Because the SCOTUS decision says (ie invented a new rule) that even in such an 'unofficial case' the government cannot use evidence of 'official' conduct to prove the case (and some such arguable conduct is cited in the indictment)," he wrote. 

The Supreme Court majority ruling said that allowing evidence of official conduct in cases about unofficial conduct could jeopardize presidential immunity.

"If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the 'intended effect' of immunity would be defeated," the ruling says. "The President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. Use of evidence about such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the President’s official decisionmaking will be distorted."

Trump's lawyers pointed to that finding in their motion, and argued that the indictment does not only include official conduct. 

The Supreme Court's opinion adds: "Allowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office."

Justice Amy Coney Barrett disagreed and concurred in part with Justice Sonia Sotomayor's dissent, arguing that excluding "any mention" of an official act associated with a bribe 'would hamstring the prosecution.'"

Chief Justice John Roberts said a prosecutor could point to public record to show the president performed the official act and admit evidence of what the president "allegedly demanded, received, accepted, or agreed to receive or accept."

But Roberts said admitting testimony or private records would invite the jury to "second-guess" the president's motivations for official acts — which he argues would "'seriously cripple'" a president's exercise of official duties.

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In her dissent, Sotomayor said federal criminal prosecutions require "'robust procedural safeguards.'"

"If the Government manages to overcome even that significant hurdle, then the former President can appeal his conviction, and the appellate review of his claims will be 'particularly meticulous,'” she wrote.

She added: "I am deeply troubled by the idea, inherent in the majority’s opinion, that our Nation loses something valuable when the President is forced to operate within the confines of federal criminal law."

Justice Ketanji Brown Jackson, meanwhile, called the "official-versus-unofficial act distinction... both arbitrary and irrational."

Jackson said "the Court has neglected to lay out a standard that reliably distinguishes between a President’s official and unofficial conduct."

Jackson said she questioned whether a president could be held accountable for committing crimes while undertaking official duties.

"[C]ourts must now ensure that a former President is not held accountable for any criminal conduct he engages in while he is on duty, unless his conduct consists primarily (and perhaps solely) of unofficial acts," Jackson said.

Corbin called the Supreme Court's ruling troubling.

"It's assumed that everyone is subject to the law in the United States, including the president, and it's a little worrisome that the President might be absolutely immune from criminal law just because he was executing a power given by the Constitution," Corbin said. "The court's justification for absolute immunity seemed pretty flimsy, and granting absolute immunity to a president especially when we know certain presidents will happily abuse their power is very worrisome."

And she called the level of immunity granted unnecessary to protect a president's ability to do the job.

"Given that future presidents may not be trustworthy, it's a real worry," Corbin said. "I mean, we've already seen what certain presidents will do without knowing they had absolute immunity. I can't imagine what we might see from a president who has absolute immunity."

In a concurrence, Supreme Court Justice Clarence Thomas raised another issue altogether — concerning the constitutionality of the special counsel.

Trump has raised such legal arguments for months and argued that Special Counsel Smith's appointment and budget violates the Constitution.

Thomas said he wasn't sure about whether the Attorney General could appoint a private citizen as special counsel, saying: "A private citizen cannot criminally prosecute anyone, let alone a former President."

"Whether the Special Counsel’s office was 'established by Law' is not a trifling technicality," Thomas said. "If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, the consequences are weighty."

Trump's lawyers cited Thomas' dissent in their motion asking Cannon to resolve constitutional questions about presidential immunity and the special counsel's authority.

Meanwhile, prosecutors have argued that long-held court precedents have upheld the authorities of special counsels.

Smith has pointed out that when Trump’s former Attorney General William Barr served under former President George H.W. Bush, Barr appointed former circuit and district judges.

And legal experts including D.C.-based national security attorney Bradley Moss say that for decades, criminal defendants indicted by special counsel have unsuccessfully challenged their lawfulness. 

The Supreme Court's ruling could also potentially forestall sentencing for Trump's criminal charges in New York.

In May, jurors in Trump's Manhattan criminal trial found Trump guilty of 34 charges of falsifying business records.

Manhattan prosecutors alleged that Trump disguised $130,000 in hush money as a legal expense as part of a scheme to keep information about alleged extramarital sex from voters and unlawfully influence the 2016 presidential election.

But in the wake of the Supreme Court's immunity ruling, Judge Juan Merchan postponed Trump's sentencing for at least two months — if, the judge said, "such is still necessary."

Trump's lawyers argue that because Trump's crimes occurred before he assumed the presidency, some of the evidence used should have been redacted.

Prosecutors alleged Trump made or caused the falsification of business records, including invoices and checks to longtime fixer Michael Cohen — some of which have Trump's signature on them. 

Prosecutors also alleged that 2017 Trump Organization general ledger entries falsely described 2017 payments to Cohen as a “legal expense.” 

Trump also faces charges for trying to overturn the 2020 election.

A D.C. federal grand jury indicted Trump on four charges in August 2023 accusing the former president of conspiring to thwart his 2020 electoral defeat and the peaceful transfer of power to President Joe Biden. 

Last December, U.S. District Judge Tanya Chutkan rejected Trump’s motion to dismiss the charges on grounds of absolute presidential immunity, which he argues completely shields him from prosecution for any actions taken while in office. 

In late February, the Supreme Court decided to take up Trump’s immunity appeal. 

The justices sent the case back to Chutkan to figure out which acts are official and unofficial.

The Supreme Court's ruling said deciding whether Trump's alleged fake electors scheme "requires a close analysis of the indictment’s extensive and interrelated allegations."

The ruling stressed that the federal government's role in appointing electors is "limited" and that the president lacks "authority to control the state officials who do." The opinion also says the framers excluded electors "suspected of too great devotion to the president in office.”

Still, the opinion said: "Unlike Trump’s alleged interactions with the Justice Department, this alleged conduct cannot be neatly categorized as falling within a particular Presidential function."

The lower court will also weigh Trumps' tweets urging his supporters to travel to D.C. on Jan. 6, as well as his speech to the crowd gathered at the Capitol.

The court's opinion said the president has "extraordinary power" to speak with citizens.

But, the opinion added: "There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader."

And last month, the Georgia Court of Appeals’ paused proceedings against high-profile defendants in Trump’s criminal election racketeering case in Fulton County — making it all but certain that the former president won’t have a televised trial before the November election.