Live Updates: Supreme Court Decision on Trump Immunity Case

Special Counsel Jack Smith arrives to speak to members of the media at the U.S. Department of Justice building in Washington, DC, August 1, 2023.

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The court has made clear that unofficial actions do not benefit from immunity, and special counsel Jack Smith has long indicated that he believes he can proceed with the case based on those unofficial actions. In that sense, if Smith narrows his indictment, lower courts could hear Trump’s trial this year.

But the Court also left a lot of work for lower courts to figure out what constitutes an official act versus a private act.

Perhaps most importantly, the majority made clear that official acts cannot be considered evidence in any eventual trial, which could make it much harder for Smith to prove Trump’s motives. And Chief Justice John Roberts wrote that lower courts cannot scrutinize the motives of a former president.

Some allegations, such as those regarding Trump’s discussions with the acting attorney general, are easily categorized in light of the nature of the president’s official relationship with the office held by that person, Roberts wrote. Other allegations, such as those regarding Trump’s interactions with the vice president, government officials and certain private parties, as well as his comments to the general public, raise more difficult questions, Roberts wrote.

But Roberts said lower courts, which must decide whether such actions are subject to immunity, should ultimately leave that analysis to lower courts to perform first.

Steve Vladeck, a Supreme Court analyst for CNN and a professor at the University of Texas Law School, said the discussion of evidence makes the task even more difficult for the special prosecutor.

Even more striking than the majority's recognition of categorical immunity from fundamental acts and presumptive immunity from other official acts is the court's insistence that the immunized conduct cannot even be used as evidence in a trial for conduct for which a former president is not otherwise immunized, Vladeck said.

This is a major problem in Trump's case and in years to come, because it will be much more difficult to prove that former presidents committed crimes for which they can be tried, even if they are not necessarily at fault. protected from being tried for such offenses, he added.

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