Courts have made clear that informal conduct does not provide immunity, and Special Counsel Jack Smith has previously made it clear that he believes he can continue to bring a case based on informal conduct, meaning that lower courts could take up the Trump case this year if Smith narrows the scope of the charges.
But the Supreme Court left much of the work to lower courts to determine what is a public act and what is a private act.
“Certain allegations, such as those regarding President Trump's discussions with the Acting Attorney General, can be readily classified in light of the nature of the official relationship between the President and the office he or she holds,” Roberts wrote. “Other allegations, such as those regarding President Trump's interactions with the Vice President, state officials, and certain private citizens, and statements to the public, raise more difficult questions.”
But Roberts said lower courts, which must decide whether those actions qualify for immunity, “are an analysis that is ultimately best left to the lower courts.”
Steve Vladeck, a CNN Supreme Court analyst and University of Texas law professor, said arguments about evidence will make it even more difficult for the special counsel.
“Even more striking than the majority's recognition of both absolute immunity for 'core' conduct and 'constructive' immunity for other official conduct is the Court's assertion that the waived conduct cannot even be used as evidence in a trial for conduct for which a former president is not immune,” Vladeck said.
“This is a big problem in Trump's case and going forward because it makes it much harder for former presidents to prove they committed crimes that deserve to be tried, even if they won't necessarily be exonerated for those crimes,” he added.
