The former president won’t be on trial anytime soon, but legal analyst Norm Eisen says a coming “mini-trial” could be revelatory.
On Monday, the Supreme Court gave Donald Trump a partial win in his effort to establish presidential immunity, endorsing the expansive legal view that a president cannot be subject to criminal prosecution for anything they do in an “official capacity.” The court’s ruling means that Trump’s January 6 case goes back to Federal Judge Tanya Chutkan, who had presided over it in her Washington courtroom before Trump’s team appealed. Chutkan will now establish what part of Trump’s efforts to overturn the 2020 election was “official” — but may be constrained by six justices’ narrow interpretation of that word. And a trial date before the November election is now all but impossible.
But last week, veteran Washington, D.C., attorney Norm Eisen, who has served in various roles including White House special counsel for ethics and government reform and ambassador to the Czech Republic, published a roadmap of where Trump’s case is headed, making the argument that Trump could still face an attenuated form of justice. I spoke with Eisen after Monday’s ruling about what happens next in the ex-president’s case, and why a coming evidentiary hearing, or “mini-trial,” could be significant, if not conclusive.
A lot of people were taken aback at how favorable Monday’s ruling was to Trump, even for this Supreme Court, and how sweeping its vision of presidential immunity really is. What was your immediate reaction? Was this ruling what you expected?
We published an analysis explaining that the Supreme Court was very likely going to establish some kind of test, that it probably would bring in core constitutional functions, and rule out unofficial functions. That was clearly coming ever since oral arguments, and that’s more or less what we got today. So there’s no shock. The other big takeaway is they very clearly mandated a mini-trial including expressly calling for fact finding, which means an evidentiary hearing.
I want to get into the details of that evidentiary hearing, and how it would work. This decision seemed lenient toward Trump regarding what can and and can’t be prosecuted as an official action. For instance, Roberts writes in his opinion that Trump’s “attempt to pressure the vice president to take particular acts in connection with his role at the certification proceeding involve official conduct.” And they said that anything he does in an official capacity can’t even be used as evidence for the stuff he didn’t do in an official capacity. How do you think the shape of the mini-trial changes after today?
A very substantial portion of the case is likely still subject to prosecution. If you look at what the chief justice describes as Trump’s interactions with persons outside the executive branch — state officials, private parties, and the general public — Trump and his co-conspirators attempted to convince state officials that election fraud had tainted the popular vote count in their states and therefore to change the electoral votes, developed and effectuated a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding. All of that may remain fair game, and all of that will be in bounds in the mini-trial. That’s why we call it a mini-trial: It’s going to put some of the most disturbing elements of the attempted coup on trial for the American people, for the court and the American people to consider. There’s a slew of evidence: The emails from Ken Chesebro and John Eastman and Jim Troupis and the fake electors, and there’s witnesses. I don’t see how Trump proves some of this stuff was official — that’s the meat of it.
You had written that in the evidentiary hearings, Chutkan could invoke a precedent from Georgia, where Jeffrey Clark, Trump’s rogue Justice Department, tried to have his case moved from federal to state court and was denied. But as I understand it, the Supreme Court has specified that anything involving Trump and the Justice Department counts as official business, so all the charges against Clark are likely to be dropped. How much does that hobble prosecutors and Chutkan?
The Georgia precedent also dealt with Mark Meadows, who was instrumental in all of these dimensions. That’s point one. Point two is that this is a procedural analogy — a way to do it that is irrespective of everybody who may have been involved. So the fact that the Clark allegations are out is not dispositive. Also, it may be that some of the activity involving Clark comes in on an evidentiary basis, because it was so far outside the scope of official conduct. If Clark met with Trump in the Oval Office and said, “Boy, I can’t wait to help your campaign, Mr. President,” that’s different from official DOJ action.
What do you envision the timeline looking like, with four months until the election? What will Chutkan do specifically now and how quickly will she do it?
The mandate will be issued shortly from the Supreme Court, probably within the next week and maybe faster. Then Chutkan should call the parties before her end schedule the mini-trial. She should say, “I’ve studied the court’s opinion. It’s for me to go through this indictment and determine what stays and what goes.” And there’s no point in waiting on it. Let’s get it done this summer before we get to the height of the political season. There should be a pretty prompt adjudication of at least that aspect of the case and I hope she will do that.
And after that, her ruling could be appealed again, to an appeals court and then eventually back to the Supreme Court? The whole thing might happen all over again.
But unlike the delay that the Supreme Court imposed upon this process by not turning to address this in December when Smith first tried to raise it, you can’t complain about that next layer of appellate review. Once there’s a speedy mini-trial — that’s the system.
This interview has been edited for length and clarity.
