The U.S. Supreme Court heard arguments this week regarding former President Donald Trump‘s claim of absolute presidential immunity from prosecution over election interference in the 2020 presidential election. Much of the hearing focused on whether there should be a distinction between official acts by Trump pursuant to his presidential duties and his private conduct.
With justices seeming to suggest that the distinction had merit — and that the private, but not official, acts would be prosecutable — Trump’s attorney John Sauer acknowledged during the hearing that “some of the alleged conduct supporting the criminal charges against the former president were private,” as CNN reported.
Former U.S. Representative (R-WY) and vice chair of the House Select Committee on the January 6 Attack on the Capitol, Liz Cheney, wrote: “POTUS has no official role in the 1/6 count. When a candidate pressures/threatens the President of the Senate (Pence), pressures and lobbies state legislatures & members of Congress, and oversees a fraudulent elector scheme, his acts are private. And plotting to appoint an AG in a quid pro quo for help on 1/6 parallels CJ Roberts’ bribery hypo.” (See note on hypo below.)
POTUS has no official role in the 1/6 count. When a candidate pressures/threatens the President of the Senate (Pence), pressures and lobbies state legislatures & members of Congress, and oversees a fraudulent elector scheme, his acts are private. And plotting to appoint an AG in…
— Liz Cheney (@Liz_Cheney) April 26, 2024
Cheney added: “Trump told SCOTUS in his 12/9/20 brief that he was filing in his ‘personal capacity as a candidate.’ The Court need not resolve more difficult immunity Qs not at issue here. Rule quickly and decisively.”
In other words, if Trump is filing in his personal capacity — and furthermore as a candidate, not as president — then the issue of what constitutes his official acts, while perhaps important to distinguish for the future, may been viewed as irrelevant for purposes of this case.
[NOTE: Chief Justice John Roberts presented a hypothetical concerning bribery that seemed to poke holes in the idea of putting official acts beyond the reach of the law. “Let’s say the official act is appointing ambassadors and the president appoints that particular individual to a country but it’s in exchange for a bribe,” Roberts said. “Somebody says ‘I’ll give you a million dollars if I made the ambassador to whatever.’ How do you analyze that?”]