Trump Jan. 6 case back in federal judge’s hands after SCOTUS immunity decision

WASHINGTON (CN) — The D.C. Circuit returned Donald Trump’s criminal election subversion case back to federal judge Tanya Chutkan on Friday, just over a month after the Supreme Court ruled that presidents are immune from criminal prosecution for any official act taken while in office. 

The move marks a long-awaited resumption of one of Trump’s ongoing criminal cases. This particular one has been on hold since January 2024, as the D.C. appellate court and the high court considered Trump’s argument that the case should be dismissed on the grounds of presidential immunity. 

Following the delay, a full jury trial before the November election is next to impossible. However, Chutkan will have to conduct a “mini-trial” to determine whether Trump could be tried on any of his alleged conduct following the Supreme Court ruling.

Chutkan, a Barack Obama appointee, can now begin issuing orders again — and can set a briefing schedule related to the high court’s immunity decision. The move comes just under a year after Trump was arranged and entered his not guilty plea in 2023. 

In the high court’s 6-3 July 1 decision, Chief Justice John Roberts ruled that a president’s actions can fall within three distinct levels: core official acts (such as pardons); official acts within the “outer perimeter” of a president’s duties; and unofficial acts. Core acts receive absolute immunity, while unofficial acts receive none whatsoever. 

Official acts within the “outer perimeter” constitute a vast majority of the president’s actions, and should be presumed to carry immunity, Roberts wrote in the majority opinion. That presumption sets a high bar for prosecutors to clear — though just how high it is remains to be tested. 

Roberts ordered Chutkan, a Barack Obama appointee, to conduct an analysis to determine which level Trump’s conduct alleged in special counsel Jack Smith’s indictment falls, and whether Smith can clear the bar of presumptive immunity.

The high court applied very little of their new test to Trump’s conduct, only using it to determined certain actions as official acts, such as Trump’s communications with the Justice Department — including threats to then-acting Attorney General Jeffrey Rosen — regarding potential election fraud investigations. 

Trump’s communications to former Vice President Mike Pence, pressuring him to use his ceremonial role over Congress’ certification of the electoral ballots to instead certify ballots from Trump’s false electors, should also receive “presumptive immunity,” Roberts said. 

That leaves a little room for Smith to prove that Trump’s communications with Pence were unofficial — but not much. Roberts suggested in the opinion that discarding immunity for those communications would likely “hinder the president’s ability to perform his constitutional function,” a repeated concern for the conservative majority.  

Roberts did not address whether Trump’s efforts to push state legislators and election officials in Arizona, Georgia, Michigan, Pennsylvania and Wisconsin to forego their electoral counts and vote for Trump should fall within the outer perimeter or unofficial. 

Further, Trump’s public statements and social media posts, which Roberts said likely “fall comfortably” in the outer perimeter, will need to be addressed by Chutkan. 

By leaving much of the test up to Chutkan, the Supreme Court left room for Trump to again challenge her decisions — potentially upending the case for good if Trump manages to win back the White House in November, at which point he could order his new attorney general to dismiss the case.

Trump has recently been enjoying a slew of victories in his federal cases. He also survived a failed assassination attempt. Trump- ppointee Aileen Cannon dismissed his classified documents case in Florida, adopting a conservative legal theory that special counsel Smith had been unlawfully appointed to his post. 

Smith has since appealed the dismissal, but he is unlikely to find much success if the case eventually reaches the Supreme Court, where Justice Clarence Thomas supported the theory in a concurring opinion in the immunity decision. 

Before the Supreme Court agreed to hear Trump’s immunity argument, Chutkan had indicated that she would give Trump’s legal team a certain grace period to catch up in the election subversion case before resuming the proceeding’s speedy pace. It is unclear whether that offer still stands nearly seven months later. 

Follow @Ryan_Knappy

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