Donald Trump has been convicted of 34 felony counts in the New York hush money case—but there’s a lengthy appeals process ahead. And what ever happened to the other three cases against him—Jack Smith’s federal election interference and classified documents cases, and Fani Willis’ Georgia election interference case? All three have hit various roadblocks. To make it easier to follow all of Trump’s ongoing legal entanglements, each Monday we’ll keep you updated on the latest developments in Keeping Up With the Trump Trials.
It’s undoubtedly been a great week for Donald Trump. In a seismic decision released Monday, the Supreme Court found that Trump is immune from criminal prosecution for any “official actions” he took as president. In a separate case, Fischer v. United States, the court also narrowed the scope of a federal obstruction law that has been used to prosecute hundreds of Jan. 6 rioters—a decision that could potentially weaken Jack Smith’s criminal indictment. And to top it all off, Justice Juan Merchan agreed to lift a portion of his gag order in Trump’s hush money conviction.
The Supreme Court Decides On Presidential Immunity—and Sends the Case Back to Judge Chutkan
In a 6–3 decision, the conservative justices handed the former president a massive win in Trump v. United States. Chief Justice John Roberts, writing the court’s majority opinion, declares that the nature of the presidency “requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office.”
Roberts writes that “official” actions having to do with “core constitutional powers” are covered by presidential immunity. Trump is “entitled to at least presumptive immunity from prosecution for all of his official acts. There is no immunity for unofficial acts.” The justice also writes that Trump’s discussions with his Department of Justice to overturn the 2020 election results are an official act that he cannot be prosecuted for—knocking down a key pillar of Smith’s indictment. And when Trump pressured his vice president, Mike Pence, to reject swing states’ electoral votes on Jan. 6, that’s also an official act that Trump is now safe from ever being prosecuted for.
What about those “unofficial” acts? Well, Roberts doesn’t clearly define what falls under that category, leaving that determination instead to U.S. District Court Judge Tanya Chutkan. Roberts’ decision creates a glaring loophole, as Slate’s Mark Joseph Stern explains. “A president may simply lie, claiming that an act was undertaken for some ‘official’ reason, and receive near-impenetrable immunity.”
Chutkan now has her work cut out for her, after Trump’s federal election-interference case has been on the back burner for the past six months. She’ll have to go through Smith’s indictment with a fine-tooth comb and apply the Supreme Court’s new standard for presidential immunity, parsing Trump’s actions into “official” and “unofficial” categories while also determining what’s left of the special counsel’s election interference indictment. It’s expected to be a complex process that all but guarantees that Smith will be unable to prosecute Trump before the November election.
Another SCOTUS Decision Weakens Jack Smith’s Indictment
Last week, the Supreme Court found, in Fischer v. United States, that the government had overreached with a law it used to prosecute hundreds of people who stormed the Capitol on Jan. 6—including Trump—by misapplying a federal criminal obstruction law.
Congress passed the law in question, the Sarbanes-Oxley Act of 2002, in the aftermath of the Enron scandal, making it a crime to destroy documents to obstruct a government investigation, the way the company’s accountants notoriously did when they suspected that the Securities and Exchange Commission would be coming for them. The act also made it illegal to “otherwise obstruct” an official proceeding, wording the DOJ seized upon to charge hundreds who participated in the Jan. 6 storming of the Capitol—until Joseph Fischer, one of the many who was charged, sued. The Supreme Court decided that Sarbanes-Oxley was intended to target those who try to destroy or manipulate physical documents, and narrowed its scope accordingly.
This means that the special counsel may have to reconsider at least two of the four charges against Trump in his election interference indictment. However, Smith has previously argued that his charges against Trump could still hold up because of the use of physical false electoral certificates that were sent to Congress and meant to be used on Jan. 6.
Aileen Cannon Will Reconsider Trump’s Attorney-Client Privilege
Last week, Judge Aileen Cannon agreed to reconsider a ruling made last year in the classified documents case that allowed Smith to access information between Trump and his former attorney Evan Corcoran—which might have been protected by attorney-client privilege.
Judge Beryl A. Howell, who was then chief judge of the U.S. District Court for the District of Columbia, ruled last year that Trump had most likely used information Corcoran had given him to further a crime, and she applied the crime-fraud exception. This allowed Smith to force Corcoran to waive his attorney-client privilege when answering questions before a grand jury. Corcoran was also required to hand over audio recordings he made of his description of conversations with Trump in which they had discussed returning classified documents to the government. Howell’s ruling was a hugely consequential win for Smith’s case, and Trump’s attorneys have fought to have it overturned since then.
In her order, Cannon wrote that there was “nothing unduly prejudicial or legally erroneous about Defendant Trump’s fact-development request,” despite Smith’s prosecution team arguing that a hearing on the matter would inevitably end up creating a “mini-trial.”
Cannon’s decision to reconsider the application of the crime-fraud exception comes a week after she held a four-hour hearing to assess whether Smith had been improperly appointed as special counsel. And although Cannon continues to give space to countless motions brought by Trump’s defense team, a trial date for the classified documents is nowhere in sight.
The Hush Money Gag Order Is Loosened
After spending months fuming over Justice Juan Merchan’s gag order in Manhattan District Attorney Alvin Bragg’s hush money case, Trump is finally allowed to publicly comment on witnesses and the jury from the criminal trial that made him a convicted felon.
Merchan modified the terms of his gag order, since the hush money trial has ended and all witnesses and jurors have been discharged. However, Merchan is still banning Trump and his lawyers from publicly disclosing the names and addresses of individual jurors and from speaking about court staffers, prosecutors, and their families until he is sentenced July 11.
During the trial, Trump violated Merchan’s gag order at least 10 times, accumulating $10,000 in fines and prompting the judge to threaten him with jail time. In Trump’s civil fraud case, he also violated a judge’s gag order, earning $15,000 in fines.
