U.S. District Judge Tanya Chutkan is limited in what she can do after the Supreme Court of the United States' (SCOTUS) recent immunity decision in former President Donald Trump's favor. But a former prosecutor for the U.S. Department of Justice says the judge still has cards to play.
During a recent interview with MSNBC host Katie Phang, Ankush Khardori – who specialized in white-collar crime and financial fraud at the DOJ — said that Chutkan is in a "very tricky" position. However, he added that DOJ special counsel Jack Smith's four-count indictment could still withstand the decision, and that Chutkan still has a path to proceed with the trial despite SCOTUS ruling that presidents have immunity for official acts.
"I really do not envy her, because one of the deficiencies in the Supreme Court's opinion I think was that it failed to describe what tools she should actually be bringing to bear, what sort of tools of analysis she should be bringing to bear on the questions that they've now kicked back to her," he said. "We also have evidence that we can draw from: Statutes [that] Congress has provided in these areas. Potentially historical practice. What other presidents have done, what former government officials and potentially even scholars have to say about the scope of the president's duties are in this context."
READ MORE: 'She will be reversed': Expert predicts Cannon will fail if she tries to give Trump immunity
One stipulation of the Court's 6-3 decision in Trump v. United States is that presidents only have immunity for official acts, and that it's up to the lower courts to determine what constitutes an official act vs. a private act. Trump-appointed Justice Amy Coney Barrett notably wrote in her opinion in the ruling that the "fake electors" plot Trump's team hatched in an effort to keep him in office after losing the 2020 election was a private act, not an official one.
This means it will be up to Chutkan — who was appointed to the bench by former President Barack Obama – to decide if the accusations laid out in Smith's four-count indictment count as "official acts" or as actions Trump took outside the duties of the presidency. Khardori said that even though Chutkan technically has discretion, she is in murky territory given the ambiguous wording in the immunity ruling.
"I think it's going to be very tricky for her to try to sort through this, because the Supreme Court, I think, was far too parsimonious in explaining what sort of analysis they think she should actually conduct," Khardori told Phang. "So I really do not envy the situation she finds herself in."
Because Trump was in the lame-duck period of his presidency at the time of the January 6 insurrection, it will be easier for his attorneys to argue that the former president was acting in the official capacities of the office in the days leading up to the attack on the Capitol. But according to former Nixon White House counsel John Dean, Smith crafted his indictment in anticipation of Supreme Court rulings pertaining to the January 6 case, and is likely to move forward full steam ahead if Chutkan decides the immunity ruling doesn't apply to his indictment.
READ MORE: Trump, Giuliani and Meadows revealed as 'unindicted co-conspirators' in MI investigation
Another case that could be impacted by the immunity decision is Trump's classified documents case in the Southern District of Florida, which is overseen by Trump-appointed U.S. District Judge Aileen Cannon. His lawyers are likely to argue that Trump storing documents at his Mar-a-Lago residence was an official act, thus protecting him from prosecution. However, Palm Beach County State Attorney Dave Aronberg said last week that should Cannon grant Trump immunity, she may be overruled by the 11th Circuit Court of Appeals.
Chutkan will be able to choose how she moves forward with the trial next month, when SCOTUS enters its official judgment in Trump v. United States.
Watch Khardori's segment by clicking this link.
READ MORE: Sonia Sotomayor: Supreme Court just gave presidents power to assassinate political rivals
