Conservative U.S. Supreme Court Justice Amy Coney Barrett made clear Monday that she believes Donald Trump was acting outside his official duties when he sought out phony electors.
The former president's lawyers argued the selection of those alternate electors was consistent with his official duties to ensure the integrity of the federal election, but special counsel Jack Smith's team portrayed the scheme as a private action for his own benefit — and Barrett seems to agree.
"Sorting private from official conduct sometimes will be difficult — but not always," Barrett wrote in a footnote. "Take the President’s alleged attempt to organize alternative slates of electors. In my view, that conduct is private and therefore not entitled to protection."
The court ruled 6-3 that former presidents are shielded from prosecution for official acts but have no immunity for unofficial acts, with Barrett voting with the majority.
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The justices sent the case back to a lower court to determine which aspects of the indictment fall into either category.
"The Constitution vests power to appoint Presidential electors in the States," Barrett wrote. "And while Congress has a limited role in that process, see Art. II, §1, cls. 3–4, the President has none. In short, a President has no legal authority — and thus no official capacity — to influence how the States appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct."
