The U.S. Supreme Court is formally sending Donald Trump's Jan. 6 case back down to a district court — and an expert has some advice for prosecutor Jack Smith on the best way to secure a win.
The high court granted Trump broad immunity for the official acts he undertook as president and established a three-part test that District Judge Tanya Chutkan will now apply to determine which crimes alleged by special counsel Smith in his federal election interference case will survive the Supreme Court ruling — a hearing which legal expert Norm Eisen says will resemble a mini-trial.
"Writing for a 6-3 majority that split on party lines," Eisen wrote, "Chief Justice John Roberts established a three-level immunity test: (1) absolute immunity when the president is exercising 'his core constitutional powers,' (2) 'presumptive immunity from prosecution for his official acts' that are not core to presidential duties (such as exercising powers given to him by Congress) and (3) 'no immunity for his unofficial acts.'"
Eisen, a senior fellow for the Brookings Institute and a CNN legal analyst, faulted the court for waiting seven months to decide the case after Smith's office asked it in December to review the immunity issue — a delay which almost certainly prevented any trial from starting before voters head to the polls in November.
"But there is still hope for voters to get some info they deserve when the case goes back to Chutkan’s capable hands," Eisen wrote. "On Friday, SCOTUS will formally send the case back down per Rule 45," which set a 32-day deadline to refer it back down after issuing the ruling July 1.
The case will land first in the District of Columbia Circuit Court, which could schedule a briefing but will most likely send it quickly back to Chutkan, who had been overseeing the case. She would then schedule a hearing to determine which Trump acts described in the indictment fall under his official duties.
"Regardless of whether Chutkan deals w discovery or immunity first, when she gets to immunity she has two options to apply SCOTUS’ test: A lengthy discovery schedule or an evidentiary hearing (mini trial)," Eisen wrote. "A mini trial is by far the best option here. It would allow Chutkan to receive witness testimony and other evidence from both parties to quickly determine the nature and scope of Trump’s immunity."
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Prosecutors could call former Vice President Mike Pence or former Attorney General Bill Barr to provide testimony about Trump's alleged actions, while defense attorneys could call witnesses — including the former president himself — to determine whether he acted within the outer perimeter of his presidential duties.
"A mini trial like this isn't unprecedented — it happened in the prosecutions of [former Chief of Staff Mark] Meadows and [former Justice Department official Jeffrey] Clark in Georgia," Eisen wrote. "When they sought to remove their cases to federal court, the judge held evidentiary hearings to decide if they acted in scope of their official duties."
Meadows testified himself during that hearing, but he ultimately lost and the extremely conservative 11th Circuit Court rejected his appeal, affirming that the district court was entitled to consider the credibility of his testimony and other evidence. Eisen said that hearing should be a model for a Trump mini trial.
"A mini trial is the way to go, but regardless, Jack Smith should 'slim to win,' meaning dropping certain charges or paring down allegations that arguably implicate official presidential functions," Eisen wrote. "To do so, Smith should cut portions that the court has already tossed for him (such as the allegations concerning the DOJ) and any questionable elements and Smith should also cut allegations related to Trump pressuring state officials and members of Congress, making public statements to pressure VP Pence at the Jan. 6 Capitol riot and not quelling the Jan. 6 rioters."
Smith should, however, keep charges related to alleged fraudulent acts with private attorneys and campaign advisors, which his attorney already conceded were private acts during oral arguments before the Supreme Court.
"Slim to win would not only make Chutkan’s task of determining Trump’s immunity easier and speed the case to trial," Eisen wrote. "But would also help uphold Chutkan’s decision upon Trump’s inevitable appeal on immunity grounds. The fact-finding at the heart of this case is key for our country’s future. Voters deserve to know about one of the most grievous attacks on our democracy. That’s why Chutkan should promptly schedule a mini trial when she gets back the case — we’ll see if she does."
