Top Federal Criminal Defense Lawyer Michael Leonard on what to expect next on Trump immunity issue. This past week, the Unites States Supreme Court heard oral argument on the issue of Trump’s claim to complete immunity in the context of the pending January 6 federal criminal prosecution.
The arguments were lengthy – more than two hours. The Justices were fixated on, and probed extensively, the issue of what constitutes an “official act” by a President, as opposed to purely personal acts undertaken by the President.
Trump’s appellate counsel stuck to his guns on certain core arguments:1) that the Constitution required that Trump first be impeached in the Senate before he could subsequently be criminally charged – and any such criminal charges must have been the subject of that impeachment conviction; 2) Trump cannot be criminally charged for any “official acts” he undertook as President; 3) Trump can be criminally charged for purely personal actions that do not constitute official acts; 4) that the January 6 Indictment alleges numerous “official acts” that cannot be the subject of the pending January 6 prosecution; and 5) the Indictment does in fact contain some limited non-official acts with which Trump is charged.
What is likely next? First, the Supreme Court will not even issue its written Opinion for 2 to 3 months. Second, in that Opinion, this attorney predicts that the Court will wholly reject argument 1) above. The Court will affirm that Trump, and any President, cannot be prosecuted for “official acts.” The Court will provide a definition or parameters on what constitutes “official acts.” The Court will remand the case to the District Court to determine, either after an evidentiary hearing, or argument, or briefing – or all of the above – which of the allegations in the pending January 6 Indictment are founded upon prohibited “official acts” and which ones are founded upon purely personal acts allegedly committed by Trump. It is possible that even that decision by the District Court will be immediately appealable – however, absent a complete dismissal, the case will likely not be heard by the Supreme Court until after a trial and final judgment. All in all, this means that the January 6 trial, if it proceeds, will not take place until the first or second quarter of 2025.
Michael Leonard
Leonard Trial Lawyers
April 28, 2024