Trump can still be prosecuted and convicted

Although the Supreme Court has granted former President Trump broad protections from criminal prosecution, the prosecution can still overcome these hurdles. I will review the steps in how the prosecution of Trump can proceed. Then I will explain why J. Merchan will likely rule that conviction for all 34 of Trump’s crimes can proceed.

The Supreme Court has developed a confusing and somewhat inconsistent test for determining what conduct a president can be prosecuted for and what evidence can be used in those prosecutions, as shown in the title image. The Court has divided presidential conduct into two broad categories, official and unofficial (right-hand sequence on the flowchart). Official acts are further divided into two subcategories, core conduct covered by Article II (left-hand sequence) and peripheral conduct (middle sequence).

The first step in determining whether a president’s conduct is prosecutable is to determine whether or not that conduct falls within an essential or exclusive Article II constitutional function. If the conduct falls within an essential Article II function, then the president is granted absolute immunity and no prosecution can be brought. Worse yet, that conduct cannot be used against the president for other crimes he may have committed. It is this overreach by the Supreme Court that worries the dissenters in this case about the viability of our democracy. For example, suppose that Donald Trump is running a prostitution ring for underage girls from the White House with the Attorney General (AG). If charged with criminal activity, Trump could argue that his discussions with the AG fall within an essential Article II function. Thus, his discussions about the prostitution ring with the AG cannot be used by prosecutors. Note that a prosecutor could still use evidence of young girls being dragged in and out of the White House.

If the conduct is not within an essential Article II function, the next question is whether the conduct falls within the outer perimeter of authority. If the conduct falls within the outer perimeter of authority, it will be considered official conduct, and if it does not, it will be considered unofficial conduct. The Supreme Court is vague in its description of the difference between official and unofficial acts, so it will be up to the lower courts to make the decision. If the lower court decides that the criminal act was official, then the president is granted a presumption of immunity, which the prosecution is allowed to overcome. The prosecution can overcome the presumption if it proves that prosecution or use of evidence of the act would not pose a danger of intrusion into the authority and function of the executive branch. However, the Supreme Court has not provided the standard that must be exceeded. For example, Jack Smith is more likely to argue that a more likely than not standard applies, while Trump's lawyer will argue that a beyond a reasonable doubt standard applies.

If the conduct is declared off-the-record, a former president can be prosecuted like any other defendant. An example of an off-the-record act would be Trump walking down Fifth Avenue and shooting someone. However, if he orders the Justice Department to assassinate someone, discussions about the assassination with the attorney general are likely to enjoy absolute immunity and cannot be used as evidence in a prosecution.

The above illustrates how Jack Smith can proceed in the prosecution of him in the January 6 case. It should be noted that both Article II and outer perimeter conduct are classified as official acts. The Supreme Court has held that Trump’s discussions with the Justice Department about overturning the election constituted Article II conduct and were therefore subject to absolute immunity. According to the Court, Trump has the right to discuss with the Justice Department the prosecution of those who commit election fraud.

Trump’s discussions with the vice president are also an official act, but they are considered to fall within the outer perimeter of the executive branch. Thus, Trump is presumed to have criminal immunity. However, the Constitution grants the president no role in the counting and certification of electoral votes. At an evidentiary hearing, Jack Smith will have Pence testify about his discussions regarding the non-certification of electoral votes from states such as Georgia, Arizona, and Wisconsin. Since the counting of electoral votes is a legislative function, a reasonable judge should agree that pressuring Mike Pence not to certify the Electoral College vote does not impair the authority and function of the executive branch. Jack Smith will then be able to sue Trump on that charge.

Trump’s discussions with state officials about falsifying the certification of fake voters should be considered unofficial conduct of the presidency. Neither the Constitution nor Congress gives the president authority over the electoral vote counting process. In fact, the certification of a state’s electoral votes is a state function, not a federal one. Thus, Smith should be able to sue Trump for election fraud.

Trump's speech was made for purely personal reasons. He urged the crowd to obstruct Congress's Electoral College certification process. Thus, his speech constitutes an unofficial act and Smith can pursue that charge. Even if the speech is considered an official act, if the prosecution can prove that the speech was made for personal gain, such as to retain the White House, that will be enough to overcome the presumption of immunity.

This immunity test will likely apply to the Manhattan case, where Trump was convicted of 34 felonies. I say likely because the Supreme Court has not ruled on whether a president is immune from state charges, but it would likely rule in favor of such immunity. So J. Merchan will have to look at the evidence and determine what acts and what evidence are subject to immunity. I think Merchan will rule that the conviction can go forward. Merchan will rule that the conviction can go forward because:

• Most of the evidence has already been deemed personal, or the defense has already waived presidential immunity.
• The remaining testimony, which has not yet been tried, comes from the outer perimeter of Trump's executive powers, but will be proven to concern personnel matters.
  • Hope Hick's testimony about her time as a White House staffer,
  • Madeleine Westerhouse's testimony on checks issued to Michael Cohen from Trump's personal accounts,
  • Trump tweets self-incriminating, and
• J. Merchan will declare that even if he is wrong, mistakes are harmless.

For a video explanation of the charts, watch this video:

I recognize that once the Trump case is filed, it is likely that an appeal will be heard by the Supreme Court. At that point, the Supreme Court will have to decide whether to let democracy go or not.