Jul.11

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What Will Tanya Chutkan Do?

Now that the Supreme Court has ruled that presidents are sort of like kings, Judge Tanya Chutkan, who is handling the Jan. 6 case, has some tough calls ahead. The Court ruled that presidents are completely immune for acts where the president's power is spelled out specifically in the Constitution. Thus a president who solicits and accepts bribes in exchange for pardons is apparently completely safe. For private crimes, unrelated to their official duties, such as shooting his annoying brother-in-law, a president can be prosecuted after he leaves office.

For official acts not listed in the Constitution, a president is presumptively immune, but prosecutors can overcome that immunity if they can show it would not result in intrusions on the Executive Branch. Chutkan now has to decide which of the 1/6-related charges against Donald Trump fall in which category.

Trump is charged with trying to overturn the election in multiple ways. If Chutkan rules any of these out of bounds, Special Counsel Jack Smith would have to modify the indictment accordingly. Here is a list of the ways Trump tried to overturn the election:

• Strong-arming the DoJ: Trump asked acting AG Jeffrey Rosen and his deputy, Richard Donoghue, to state that the election had been tainted by fraud. That would have given Trump cover to tell Congress the count was rigged. Both refused. Trump wanted to replace Rosen with Jeffrey Clark, who was willing to do Trump's bidding. The Supreme Court ruled that as head of the Executive Branch, Trump was free to talk to any Executive Branch official and replace any one he chose to replace. This charge will have to go.
  
  
• Pressuring Mike Pence: Trump tried to get President of the Senate Mike Pence to throw out some electoral votes. This is less clear because, according to the Constitution, when the vice president is acting as President of the Senate, he is not carrying out an executive branch function. Also, the president plays no role whatsoever in counting the electoral votes, so interfering with the process can't be considered an official duty. Chutkan could allow this charge to stand, but her decision would be sure to be appealed.
  
  
• The fake electors scheme: Trump has claimed that calling state election officials, like Georgia Secretary of State Brad Raffensperger, and state legislators was part of his ensuring that the laws are faithfully executed. It's possible, except that his job is enforcing federal laws, not state laws. To the extent that Trump can be tied to the fake electors scheme directly, that is certainly not part of the job description, but Trump will try to argue that he didn't even know about it. Ken Chesebro might testify otherwise though.
  
  
• Riling up the Crowd on Jan. 6: Did Trump address the crowd on Jan. 6 in his capacity as president or as a presidential candidate? In the former case, he might be immune. In the latter, probably not.
  

Chutkan could hold hearings in August if she wishes, to have each side present its case on each charge. That could be quite damaging to Trump, so his lawyers will probably argue that each side should submit briefs by, say, Nov. 6, and then she should read them and make a decision based on them. It's her call how to proceed. (V)