Former President Donald Trump's attorneys are contesting the inclusion of conversations with then-Vice President Mike Pence in the federal election interference indictment.
According to a report by The Washington Post, Trump's legal team argues that these discussions should be considered "official acts" and thus protected from prosecution under a recent Supreme Court ruling.
The indictment, filed by Special Counsel Jack Smith, details several instances where Trump allegedly pressured Pence to help overturn the 2020 election results. These include a Christmas Day phone call and a New Year's Day conversation where Trump reportedly berated Pence for being "too honest" about his lack of authority to block Joe Biden's victory certification.
The Supreme Court's recent decision on presidential immunity has added a layer of complexity to the case. The ruling states that presidents are generally immune from criminal prosecution for "official acts" but can be prosecuted for unofficial acts. However, the court did not provide a clear distinction between the two categories.
At a recent hearing, Trump's attorney, John Lauro, argued before Judge Tanya S. Chutkan that conversations between a president and vice president should be considered official acts. Lauro went as far as to suggest that without the Pence conversations, the entire indictment against Trump would be too weak to proceed to trial.
Special Counsel Jack Smith is expected to file his legal reasoning by Thursday, explaining why the revised indictment adheres to the Supreme Court's ruling. This filing may offer the first glimpse into Smith's argument for why Trump's conversations with Pence are not protected by presidential immunity.
Despite removing some evidence following the Supreme Court's immunity ruling, Smith's revised indictment still contains 36 pages of allegations against Trump. These include claims that Trump spoke to state officials to persuade them of election fraud and worked with co-conspirators to create a fake elector scheme.
The indictment also retains allegations of Trump's conversations with Pence, urging him to use his role as president of the Senate to block the certification of the 2020 election results. One such conversation, as described in the indictment, occurred on Christmas Day:
The Vice President pushed, telling the Defendant, as the Vice President already had in previous conversations, 'You know I don't think I have the authority to change the outcome.'
Legal experts have noted that while many of Smith's decisions in the revised indictment seem straightforward, the inclusion of Trump's conversations with Pence is a riskier move. Some suggest that Smith may argue that the president's role in the executive branch does not include the certification of election results.
The Supreme Court's ruling acknowledged that discussions with the vice president in his role as president of the Senate could be an exception to the general immunity principle. However, the court left it to the lower courts to assess whether prosecuting such conversations would intrude on executive branch authority.
Daniel Richman, a professor at Columbia Law School, believes that even without the Pence conversations, there are enough allegations in the indictment for the case to proceed. However, he cautioned that losing these conversations could weaken the prosecution's argument that Trump broke the law in his attempts to overturn the election results.
Stephen Gillers, a law professor at New York University Law School, argues that prosecuting Trump for his conversations with Pence would not undermine the presidency. He contends that the interactions described in the indictment have nothing to do with the executive branch running the government. Gillers stated:
We do not have to worry that permitting that to happen will limit the president from running the government. Trump's argument is that it's too risky — we want a president and vice president to talk without fear of prosecution. But it will not have an effect of intimidating future presidents from having candid conversations with their vice presidents.
The case against Trump continues to evolve as legal teams on both sides grapple with the implications of the Supreme Court's immunity ruling. Judge Chutkan's decision on the admissibility of the Pence conversations will likely be appealed, with the Supreme Court potentially having the final say. The outcome of this legal battle will have significant implications for the prosecution's case against the former president and may shape the boundaries of presidential immunity in future cases.
