After Immunity: How Judge Chutkan Should Apply Trump v. U.S.—and When (Norman L. Eisen, Matthew A. Seligman, E. Danya Perry and Joshua Kolb, September 2, 2024, Just Security)
In our view, it is appropriate to proceed first with briefing on whether the superseding indictment and other evidence to be presented at trial meet the tests of Trump, as suggested by the special counsel in the joint status report. Immunity issues are typically treated as a threshold matter, Hunter, 502 U.S. at 227 (1991) (the Supreme Court has “repeatedly … stressed the importance of resolving immunity questions at the earliest possible stage in litigation”), and doing so is consistent with the Court’s opinion in Trump, including the rationale for interlocutory appeal to protect the interests of the presidency.
As we have explained, Smith has neatly teed up the critical questions for the trial court judge with his streamlined pleading, stripping out material that clearly implicates immunity and adding modifying language to clarify allegations that the government believes relate to unofficial conduct. All of that has made the complex task of applying the Trump test easier for the judge and the parties, and we believe the D.C. Circuit and the Supreme Court will ultimately uphold the superseding indictment.
The most hotly contested issue is likely to be whether the allegations about the vice president concern his official executive branch role, his legislative role as the president of the Senate, or his private one as running mate and whether they are or are not immune. A full analysis of this point is beyond the scope of this article and will be the subject of a future one, but we believe the special counsel has the better of the argument here. See Trump, 144 S. Ct. at 2337 (“Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of ‘presiding over the Senate’ is ‘not an “executive branch” function.’ With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U.S.C. § 15, and the President plays no direct constitutional or statutory role in that process”) (quoting Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974)).
Depending on whether and how Trump challenges these and other allegations in the indictment, briefs alone may not be sufficient to resolve the dispute or to rebut any presumption of official conduct, and an evidentiary hearing or “mini-trial” may be required, such as with respect to the question of the capacities in which Pence was acting at particular crucial moments. It may well be that the dispositive evidence as to such questions is his own testimony.