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.