Whether Discussions Between Trump and Pence Are Covered by POTUS Immunity? Does The Special Counsel's Entire Case Hinge On The Answer?

While not obvious on the face of the SCOTUS opinion on Presidential Immunity, the clear answer to this question dooms the efforts of the Biden DOJ and Special Counsel Jack Smith.

I make a predication here on a legal question that is looking less and less likely that we’ll ever actually see come down in any court — if Trump wins re-election this case is going to evaporate and this question will never be answered.

But I think it is instructive to look at this question because there was a significant and pointed exchange between the district judge and Trump’s attorney on the question of where the decision on this question stands, and how an answer favoring the view of Trump’s Defense would impact the viability of the case going forward.

A point of sharp disagreement in Thursday's status hearing in U.S. v. Trump was what would remain in the indictment if the communications between former President Trump and Vice-President Pence in the lead-up to January 6 are covered by Presidential immunity recognized by the Supreme Court. Remember, a key point in the Roberts Opinion that stirred controversy was the section telling the lower court that conduct that is immune as an official act cannot be introduced at the trial for any purpose. Because of that, all the evidence of communications between Trump and Pence would be off-limits in a trial.

I think Trump's attorney got the better of the exhange when the Judge first disagreed with his claim that the Supreme Court had said that the conversations were covered by immunity -- she claimed the Supreme Court had remanded that question for her to resolve without reaching that decision itself.

But that is not true, as Trump's attorney pointed out. Here is the relevant passage from the Opinion:

"Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecutionfor such conduct…. The question then becomes whether that presumption of immunity is rebutted under the circumstances."

The Supreme Court said -- and it is not an option of the lower court to dispute -- that whenever Trump and Pence spoke about their official responsibilities, they engage in official conduct, and presiding over the January 6 Joint Session of Congress is a constitutional duty of the Vice President. So the baseline is that their conversations on the subject involved "official conduct."

The next step is determining whether the presumption can be overcome.

That requires consideration of this question -- in the Supreme Court's own words:

"At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “'dangers of intrusion on the authority and functions of the Executive Branch.'”

That will be a very high bar to clear for the Special Counsel because of the formulation given by the Court to the sentence -- "pose NO dangers of intrusion." Not actual intrusion -- danger of intrusion. And I would argue that the "danger" is forward looking -- it is danger to future Presidential administrations if a prosecutor is allowed to criminalize the interactions of a President and Vice President.

The opinion then sets up a "Gordian Knot" for the lower court to resolve with the following two segments presented in the fashion of "On the one hand" and "On the other hand" construction:

"When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.... With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes ... and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.”

That all sounds pretty straight forward and would support allowing SC Smith to use the communications as part of his case. But it is offered as part of a "The Government may argue" formulation that is then followed with the next paragraph stating as follows:

"At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President — even though they concern his role as President of the Senate — may well hinder the President’s ability to perform his constitutional functions."

I do not think it is any wild speculation do predict that the district judge is likely to side with SC Smith who is going to rely on the first solution to the Gordian Knot and reject the second solution.

But all involved acknowledged that another appeal will certainly follow whatever decision the district judge comes to.

How much of the Superseding Indictment relies on the availability of the evidence of Trump "pressuring" the Vice President with regard to the Joint Session of Congress on January 6, 2021?

As noted in my earlier article about the Superseding Indictment, the Special Counsel entirely removed the parts in original indictment that involved allegations that President Trump sought to use the Justice Department in various ways to advance his interests between the 2020 election and the certification proceeding on January 6, 2021.

In the “Manner and Means” section of the conspiracy allegations, SC Smith deliberately writes around the problem of having only President Trump’s communications with the Vice President be the basis of the alleged pressuring the Vice President in the following way:

The Defendant and co-conspirators attempted to enlist the Vice President, in his ceremonial role as President of the Senate… to fraudulently alter the eleçtion results.”

The original indictment also relied on a construction where Trump was linked with his co-conspirators in this same manner on this subject. But the use of this description in numerous instances seems more deliberate in the Superseding Indictment. But what the Superseding indictment lacks, as noted below, are specific instances where the co-conspirators personally interacted with Pence for this purpose.

This construction is meant to build in two levels of protection with regard to using the allegations of pressure on Pence. First, it allows SC Smith to argue that others besides Trump were involved in pressuring Pence, and seeking to get into the efforts by skirting around issues of immunity that might apply to Trump himself. While Trump’s conduct might be subject to immunity, SC Smith will argue that the same immunity does not extend to co-conspirators. He repeats the “Defendant and co-conspirator” linkage in many other places in the Superseding Indictment. Where this will run into an evidentiary wall is when SC Smith cannot produce a second participant with Trump in these supposed conversations where Pence was pressured. If any such identified conversation is one-to-one between Trump and Pence, the description in the indictment won’t save SC Smith’s allegation.

The second level of protection is to assert this pressure was not part of the function of the executive branch — none of the identified co-conspirators were Executive Branch officials. Further, the Superseding Indictment alleges Pence’s involvement was as part of his Legislative Branch duties under Article I of the Constitution, not his Executive Branch duties, and Trump had no duties — official or otherwise — in connection with the Congressional proceedings on January 6.

An interesting aspect of the first level is the degree to which Trump would be subject to evidence of co-conspirator conduct in a conspiracy that in many other respects fall within the scope of his officials acts. Again, a novel question of law that never before needed to be answered.

Nearly the entirety of the middle 15 pages of the Superseding Indictment deal with allegations involving various States where Trump and the co-conspirators are said to have pressured state officials to alter the vote count in ways that would change the outcome in each state in Trump’s favor. There are no specific allegations involving Vice President Pence in this section of the Superseding Indictment.

The allegations regarding pressuring Vice President Pence pick begin in Paragraph 67 on Page 24 of the 35 page Superseding Indictment.

• Par. 71 — There is a specific conversation recounted from December 25, 2020, between only the President and the Vice-President.

• Par. 72 — There is another specific conversation recounted on January 1, 2021, between only Trump and Pence.

• Par. 73 — There is a communication alleged on January 3, 2021, but the Superseding Indictment doesn’t specify whether it was a telephone call or an in-person meeting. It does not describe any third-parties being present.

• Par. 75 — There is a meeting on January 4, 2021, in which several people are in attendance with Trump and Pence — but most are other government officials, including Pence’s Chief of Staff and Counsel. The interaction between Trump and Pence is described as Trump having “asked” the Vice President to take certain steps.

• Par. 80 — Next there are allegations about another one-on-one meeting between Trump and Pence on January 5. There are no alleged instructions given in this meeting. It is alleged that Pence told Trump he did not think he had the authority to rejected the electoral votes from the disputed states, and Trump said that he would have to publicly criticize Pence. Oh my!!! Later that night the Trump campaign — allegedly at Trump’s direction — put out a statement saying the President and Vice President agreed that Pence had the power to act. Again — no “instruction” of any kind telling Pence what to do.

• Par. 82 — On the morning of January 6 Trump made more public statements via Tweet “aimed at pressuring Pence” according to the Superseding Indictment. This runs into a problem I noted in my earlier article — the Supreme Court also highlighted the high level of First Amendment afforded to a POTUS in communicating with the country, and his motives for doing so are not subject to scrutiny.

• Par. 84 — At 11:15 am, it is alleged that Trump called Pence, and they again disagreed on whether Pence had the power to reject electoral votes from the identified states.

The indictment goes into great detail with regard to the number of times Trump advocated to third parties and the public that Pence possessed the authority after Pence had taken the position that he did not. But none of those episodes involved interactions with the Vice President, and all of them involved communications to the public that the Supreme Court has said enjoy a heightened sense of First Amendment protection for a POTUS.

The alleged conduct largely consists of Trump’s communications in the form of Tweets and a public address. The President possesses “extraordinary power to speak to his fellow citizens and on their behalf.” Hawaii, 585 U. S., at 701; cf. Lindke v. Freed, 601 U. S. 187, 191 (2024). As the sole person charged by the Constitution with executing the laws of the United States, the President oversees—and thus will frequently speak publicly about—a vast array of activities that touch on nearly every aspect of American life. Indeed, a long-recognized aspect of Presidential power is using the office’s “bully pulpit” to persuade Americans, including by speaking forcefully or critically, in ways that the President believes would advance the public interest.

[I plan to write separately on this issue, as I think it is an evidentiary hurdle that SC Smith will likely find impossible to overcome because so much of the remaining narrative in the Superseding Indictment depends on claims that Trump was knowingly making false statements to the public about the election and its outcome all during the period between the election and the January 6 vote certification.]

The Superseding Indictment includes many allegations suggesting indirect approaches to the Vice President that are described as efforts by President Trump and his allies to convince Vice President to cooperate in their efforts.

Removing all the personal interactions between Trump and Pence deprives the indictment of any obvious “causal” connection between Trump and the actor in the alleged conspiracy who was necessary for the proposed challenge to have been attempted. It would leave the trial record incomplete in that there will be evidence of the plan, co-conspirators will advocate the plan, and Pence will reject the plan. Trump’s direct communications to Pence will likely be excluded, and it is likely that Trump’s comments to third parties for the purpose of communicating them to Pence will likely be excluded — his acts are no less official merely because he relays his comments to the Vice President through an intermediary than they are when he makes the directly.

Regardless what the district judge decides regarding the interactions — direct or indirect — with Vice President Pence, the matter is going to return to the Appeals Court and then likely to the Supreme Court. My reading of the Opinion suggests that Chief Justice Roberts has already tipped his hand when it comes to whether or not the Special Counsel is going to be able to rebut the presumption, based on the following comments on the topic:

Indeed, our constitutional system anticipates that the President and Vice President will remain in close contact regarding their official duties over the course of the President’s term in office. These two officials are the only ones “elected by the entire Nation.”

It is thus important for the President to discuss official matters with the Vice President to ensure continuity within the Executive Branch and to advance the President’s agenda in Congress and beyond.

The Vice President may in practice also serve as one of the President’s closest advisers. The Office of Legal Counsel has explained that within the Executive Branch, the Vice President’s “sole function [is] advising and assisting the President.”

The President and Vice President together “are the senior officials of the Executive Branch of government” and therefore “must formulate, explain, advocate, and defend policies” of the President’s administration.

As the President’s second in command, the Vice President has historically performed important functions “at the will and as the representative of the President.”

It is after this 3-page section of the Opinion that the Chief Justice offers the “on the one hand” and "on the other hand” observations about how each side might advance its position on the issue of rebutting the presumption of immunity in the lower court. But this series of statements about the inter-related nature of the two offices inside the Executive Branch establish a very heavy burden for the Special Counsel to carry given that the test for him is to show “no dangers of intrusion” on the authority of ANY future President’s ability to control the Executive Branch.

That is the key factor — when a former POTUS faces the possibility of a criminal trial, it is not the impact on the authority of the former POTUS that must be considered. It is the impact of intruding on the relationship between future Presidents and Vice-Presidents caused by allowing a prosecutor to step into the middle of that relationship and use their communications as evidence against a former POTUS in a criminal trial.

[T]he President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.

As I noted at the outset, if former President Trump wins the election this coming November, he will control the Justice Department. Jack Smith will be fired and every DOJ official who has had a hand in pursuing this prosecution will leave the Department — willingly or not. At that point the case will be dismissed and I do not anticipate that there will be any “General Flynn” issues — the biggest difference is the fact that Gen. Flynn had pled guilty in his case and was awaiting sentencing with DOJ reconsidered and attempted to dismiss the case after the Mueller Special Counsel had dissolved.

So we will never get an answer to this question about whether communications between the President and Vice President in this case are covered by Presidential immunity.

But if this case does make its way to the Supreme Court it seems clear that there are 5 votes — at least — to find that the Special Counsel cannot meet the “no dangers of intrusion” test that the Supreme Court set forth in its opinion, as a predicate for a criminal prosecutor being allowed to criminalize interactions between the Office of the President and the Office of the Vice President.

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Next — whether the process set in motion by the District Court’s Scheduling Order conforms to what the Supreme Court’s Opinion calls for in terms of the procedural steps to be followed in establishing the outer boundaries of “official conduct” that is subject to presumptive Presidential Immunity, followed by a process to determine whether the Special Counsel can rebut that presumption.