TABLE OF CONTENTS
I. Introduction
II. The Supreme Court’s Immunity Framework
III. Applying the Court’s Immunity Decision to the Indictment
1. Undisputed Unofficial Conduct
2. Alternate Electors Scheme
3. Public Statements
4. Pressuring State Officials
5. Vice President Pence Plan
6. Conduct Related to the Congressional Count on January 6
7. Pressuring the Department of Justice
Introduction
In the coming weeks or months, a federal district court will have the opportunity to apply the Supreme Court’s recent ruling on the scope of a former president’s immunity from criminal liability. The decision has been accurately described, by Akhil Amar and others, as one of the worst in the Court’s history because of the leeway it gives a president to commit crimes and its expansion of exclusive executive authority. However, the Court’s ruling shields only some official presidential conduct from criminal prosecution. Unofficial acts are not covered by immunity, and not all official acts are absolutely immune. A key question in the January 6 case becomes which of the specific acts alleged in the indictment are immune under the Court’s new test and which aren’t. The Court gave important “guidance” (its term), but largely left that question for the trial court to answer in the first instance. The trial court’s process for answering that question will involve an evidentiary inquiry, and perhaps hearings, to assess alleged facts relevant to the legal test.
On our view, the Court’s decision leaves the core of the case against Trump intact. A fair application of the Court’s new immunity test to the indictment’s allegations yields a narrowed but still plainly viable prosecution. As we write, the trial court and the parties are preparing to grapple with this issue. On Saturday, August 3, Judge Tanya Chutkan—the trial judge presiding over the case—issued an order requesting the parties to propose a schedule for the remaining pretrial proceedings. The order also scheduled a status conference for August 16, at which the court may decide the path forward. The application of the immunity test will likely be a central part of that process.
In this essay, we discuss how the trial court should approach applying the Supreme Court’s ruling. We believe that as soon as possible following the status conference, Judge Chutkan should schedule an evidentiary hearing—a “mini-trial,” in which documents and witnesses are presented—to determine the scope of the immunity in this case. Our examination of the new immunity rule and the specific allegations against Trump indicate that Smith’s case remains strong and should survive that inquiry with key elements remaining unscathed.
Our analysis is supplemented by an annotated version of Smith’s indictment, which color-codes the allegations according to the degree to which they are now potentially protected by the Supreme Court’s immunity ruling. Green are the least affected and red are the most affected, with the full coding approach outlined below in Section III of this essay.
The Supreme Court’s Immunity Framework
On July 1, the Supreme Court issued a sweeping decision regarding the scope of presidential immunity from criminal prosecution. In a 6-3 decision that split along conservative-liberal lines, Chief Justice John Roberts wrote a majority opinion that promulgated a new three-tier framework: (a) absolute immunity for acts exercised within the president’s exclusive “core constitutional powers”; (b) at least “presumptive immunity” for all other official acts; and (c) no immunity for unofficial acts.
A threshold question is differentiating between official and unofficial acts. The Court recognized presidential immunity that “extends to the ‘outer perimeter’ of the President’s official responsibilities, covering actions so long as they are ‘not manifestly or palpably beyond [his] authority.’” Op. at 17 (quoting, in part, the test in Blassingame v. Trump). Anything that falls within the “outer perimeter” enjoys, at a minimum, presumptive immunity from criminal prosecution. In making this determination, courts may not look at a president’s motives, or “deem an action unofficial merely because it allegedly violates a generally applicable law.” Op. at 18. The Court recognized that conduct falling outside the scope of the president’s official responsibilities is subject to criminal prosecution like that of any other American. Op. at 5 (“[A] former President can be subject to criminal prosecution for unofficial acts committed while in office.”).
A subset of the president’s official actions are protected by absolute immunity. The president’s core constitutional powers are those that are “conclusive and preclusive” to the president. The Court’s precedent indicates that those include the power to pardon, the power to remove executive officers he has appointed, and the power to recognize foreign countries. These powers are exclusively exercised by the president. “Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his ‘conclusive and preclusive’ constitutional authority.” Op. at 8.
Outside of that core, “not all of the President’s official acts fall within his ‘conclusive and preclusive’ authority.” Op. at 9. For all other official acts, the Court found that the president enjoys at least presumptive immunity from criminal prosecution. “Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution.” Op. at 14. The Court established a test to rebut such a presumption: “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.’” Op. at 14 (quoting, in part, the test in Nixon v. Fitzgerald).
Applying the Court’s Immunity Decision to the Indictment
In the following analysis and accompanying annotated indictment, we have separated the allegations into seven different categories. We color code those allegations in the order of how likely they are to fall within the scope of the Court’s immunity test. The colors represent a spectrum with green involving allegations clearly passing the test, yellow the next most likely, orange a closer call (but still likely to pass), and red clearly failing.
Clearly Not Immune
1. Conduct Trump Does Not Dispute Was Unofficial and Publicly Available Information (Green)
Not Immune
2. Alternate Electors Scheme (Light Green)
3. Trump’s Public Statements (Light Yellow)
4. Pressure on State Officials (Yellow)
Likely Not Immune
5. Vice President Pence Plan (Light Orange)
6. January 6 and Congressional Action (Orange)
Clearly Immune
7. Pressuring the Department of Justice (Red)
As we explain below, there is a reasonable chance that all but the last of these categories — the DOJ allegations — would survive the immunity test. The remaining conduct in the indictment for which Trump is not immune would, in turn, likely be sufficient to form the basis of a strong and successful criminal prosecution.
1. Undisputed Unofficial Conduct
We highlight in green what conduct Trump’s counsel conceded was unofficial at oral argument.
Justice Amy Coney Barrett began by asking Trump’s seasoned attorney D. John Sauer, “So you concede that private acts don’t get immunity?” Sauer responded, “We do.” She then pointed out that major portions of the indictment (all of which we have highlighted in green) involve those admittedly private acts. First, she asked, “Petitioner turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private?” Sauer responded, “[T]hat sounds private to me.” [Tr. 28:17-29:13]. This allegation appears throughout the indictment and is part of each of categories 2-6 below, because Trump relied on these knowingly false assertions to fuel his numerous schemes to overturn the election.
Justice Barrett then asked, “Petitioner conspired with another private attorney who caused the filing in court of a verification signed by Petitioner that contained false allegations to support a challenge. Private?” Sauer responded, “That also sounds private.” [Tr. at 29:15-20]. The allegations related to Trump’s litigation efforts conducted with John Eastman and other private attorneys, which were also woven through categories 2-6 — that is, they were part of the alternate electors scheme, related to Trump’s public statements, were used to pressure public officials, and were part of the purported grounds for both the Pence plan and January 6. So here again, Sauer’s admissions help ground all of the categories of allegations that we argue survive the Supreme Court test. That said, we do not take Sauer’s second admission, on its own, to turn other text into green, but it certainly does so for an important part of the indictment that tracks the example Justice Barrett posed.
Justice Barrett next asked, “Three private actors, two attorneys, including those mentioned above, and a political consultant helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding, and Petitioner and a co-conspirator attorney directed that effort.” Sauer responded, “I believe…that’s private.” [Tr. 29:21-30:6]. This allegation most directly relates to the alternate electors scheme (category 2). Because the fraudulent electoral certificates served as the paperwork predicate for both the plan to pressure Pence to reject Biden’s lawful electoral votes and the plan for Republican members of Congress to object to Biden’s lawful electoral votes, this allegation also relates to categories 5 and 6.
After making these concessions, Sauer appeared to realize the damage he had done. He attempted to draw a line during questioning by Justice Elena Kagan that the president calling “the chairwoman of the Republican National Committee, [and] ask[ing] her to gather electors” is official. He argued that “the organization of alternate slates of electors” is “done pursuant to…the exercise of the core Recommendation Clause power” under the Constitution. [Tr. at 37:4-22]. Justice Kagan expressed disbelief at Sauer’s position, id., but out of an abundance of caution we independently analyze these allegations below.
One last point on undisputed unofficial conduct: the indictment includes public statements of other individuals aside from Donald Trump, Indictment ¶ 17, and the outcome of litigation brought in federal and state court, Id. ¶ 11(h). Because these allegations do not appear to be contested on immunity grounds, we also code it green.
2. Alternate Electors Scheme
Trump and his co-conspirators’ alleged plot to organize false slates of electors to overturn the legitimate results of the 2020 election is a key, large part of the federal indictment.
The alternate elector scheme is not plausibly covered by any form of presidential immunity under the Court’s test. First, it is private conduct that Trump engaged in as a candidate, not as an office holder. At oral argument, Justice Kagan asked Trump’s counselSauer whether Trump’s alleged conduct in organizing the scheme was official or unofficial conduct: “call[ing] the chairwoman of the Republican National Committee, ask[ing] her to gather electors, and . . . falsely represent[ing] to her that such electors’ votes would be used only if ongoing litigation in one of the states changed the results in [Trump’s] favor.” [Tr. at 37, quoting Indictment at 23.] Although Sauer claimed that this conduct was official, Kagan explained that “action [was taken] just in the status of candidate.” [Tr. at 38.] The president has no official role at all in the organization of electoral slates. At oral argument, Sauer made the following frivolous historical claim as purported precedent for Trump’s involvement in organizing alternate slates of electors:
“We have the historical precedent we cite in the lower courts of President Grant sending federal troops to Louisiana and Mississippi in 1876 to make sure that the Republican electors got certified in those two cases, which delivered the election to Rutherford B. Hayes.” [Tr. at 25.]
But as we have previously explained, Grant’s actions in 1876 were neither factually analogous to Trump’s alleged conduct nor taken outside of the president’s official constitutional duties. Grant mobilized federal troops in the South pursuant to his statutory authority in the Enforcement Act of 1871 (also called the Ku Klux Klan Act) to stop violence by white supremacists from preventing freed slaves from voting and interfering with the lawful authorities counting those ballots. In contrast, Trump’s organizing alternate electors as the predicate for the counting of unlawful electoral votes on January 6 lacks any statutory authority. It also lacks any connection to such indisputably official conduct as commanding the military pursuant to necessary executive authority.
As Justice Barrett explained in her separate concurring opinion:
“The Constitution vests power to appoint Presidential electors in the States. Art. II, §1, cl. 2; see also Chiafalo v. Washington, 591 U. S. 578, 588–589 (2020). And while Congress has a limited role in that process, see Art. II, §1, cls. 3–4, the President has none. In short, a President has no legal authority—and thus no official capacity—to influence how the States appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct.”
Barrett Op. at 3 n.2. Together with the three dissenting justices, Justice Barrett’s opinion makes clear that at least four justices would hold that the alternate elector scheme is not shielded by immunity. The remaining five justices in the majority pointedly did not address that ultimate question of immunity for this conduct. In sum, in light of the clear absence of presidential authority to oversee states’ administration of presidential elections, it is highly likely that the district will properly determine this conduct not to be immune.
3. Public Statements
Whether Trump’s public statements leading up to and on January 6, 2021 constituted official acts has also been the subject of civil litigation. In Blassingame v. Trump, the D.C. Circuit rejected Trump’s sweeping position that “a President’s speech on matters of public concern is invariably an official function, and he was engaged in that function when he spoke at the January 6 rally and in the leadup to that day.” Blassingame v. Trump, 87 F.4th 1, 5 (D.C. Cir. 2023). The court noted that a sitting President running for re-election often speaks on matters of public concern, even when acting in an “unofficial, private capacity as an office-seeker, not an official capacity as office-holder.” Id. Examples of that type of unofficial speech include accepting a party nomination at a convention or appearing in a political ad.
However, the D.C. Circuit also acknowledged that Trump should have the opportunity to develop the factual record and make the argument that the specific communications at issue in that suit were undertaken in his official capacity. That discovery would enable the district court to engage in a “context-specific assessment.”
The Supreme Court borrowed heavily from the Fitzgerald civil framework that Blassingame interprets and applies to Trump’s January 6-related speech; and the justices also quoted Blassingame favorably for how to make this assessment. Thus, the public-concern test Trump proposed in Blassingame should similarly be rejected in the criminal case. Instead, Judge Chutkan should undertake the fact-based analysis the Supreme Court demanded.
The core question Judge Chutkan will need to answer is, “[I]s it reasonable to think [Trump] was exercising his official responsibilities as President, or was he instead engaging in reelection campaign activity as a presidential candidate?” Blassingame, at 53. The Blassingame case provides some guidance for the types of facts that could be relevant in this analysis. “[F]or instance, that the January 6 rally was ‘organized in part by Trump’s former campaign staff’ and ‘arranged and funded by a small group including a top Trump campaign fundraiser and donor,’ Blassingame Compl. ¶ 59, J.A. 38 (quotation marks and citation omitted), or ‘was organized and funded by Trump’s campaign organization,’ Swalwell Compl. ¶ 97, J.A. 98.” Id., at 54. If the district court in that civil litigation determines that those facts are accurate, it would strongly suggest that the speech at the rally was a campaign act, and thus unofficial.
A similar type of inquiry will need to be conducted by Judge Chutkan. Indeed, the Supreme Court, implicitly echoing Blassingame, explained that questions of “who was involved in transmitting the electronic communications and in organizing the rally” involve “necessarily factbound analysis [that] is best performed initially by the District Court.” Op. at 30.
As two of the authors have explained previously, Judge Chutkan can conduct that factbound analysis by holding an evidentiary hearing, or a so-called “mini trial,” where evidence and witnesses can be presented. Such a proceeding would also have the salutary, incidental effect of allowing the Government to publicly present many of the facts surrounding Trump’s attempt to prevent the certification of the election.
There are a wide range of public communications by Trump contained in the Special Counsel’s indictment — ranging from Trump’s allegedly knowingly false claims of election fraud to his tweet attacking Mike Pence after the riot at the Capitol had begun (claiming that Pence “didn’t have the courage to do what should have been done”), which Smith alleges was “intended to further delay and obstruct the certification.” Indictment ¶ 111. An evidentiary hearing can help establish the factual context surrounding each of these. But even without that additional factual investigation, many of these statements appear to have been conducted in Trump’s unofficial capacity as a candidate. For example, Trump’s call for his supporters to Washington, D.C., to protest on January 6, 2021 and his tweet that the rally would “be wild” (Indictment ¶ 87) clearly resembles the acts of a political leader rather than the nation’s chief executive.
In sum, it appears to us that most of Trump’s public statements alleged in the indictment could fall outside the bounds of official immunity.
4. Pressuring State Officials
Trump’s communications with state officials also likely falls outside the scope of presidential immunity. Trump has argued that his actions were part of his official duties under the Take Care Clause of the Constitution. However, that argument has already failed in a related case. Last year, the Eleventh Circuit ruled that former White House Chief of Staff Mark Meadows could not remove the Fulton County, Georgia criminal prosecution against him to federal court. In making that determination, the panel of conservative judges — led by Chief Judge William Pryor — addressed the role of the federal government in the administration and regulation of presidential elections. The Court held that the White House chief of staff has essentially no official role in presidential elections in part because the president has no such role.
As with Trump, Meadows contended that the Take Care Clause “empowers the President with broad authority to ‘ensure that federal voting laws are enforced.’” State v. Meadows, 88 F.4th 1331, 1347 (11th Cir. 2023). But the Eleventh Circuit ruled that “the Take Care Clause [does not] empower[] federal executive interference with state election procedures based solely on the federal executive’s own initiative, and not in relation to another branch’s constitutionally authorized act.” The Eleventh Circuit recognized that any such purported authority would contravene the Founders intent, along with both longstanding and recent Supreme Court precedent. Instead, “[t]he Constitution empowers only the states and Congress to ‘regulate the conduct of [federal] elections.’” Id., 88 F.4th at 1346 (quoting Roudebush v. Hartke, 405 U.S. 15, 24 (1972)); see U.S. Const. art. I, § 4, art. II, § 1. Over a decade ago, the Supreme Court explained that the “Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.” Shelby County v. Holder, 570 U.S. 529, 543 (2013) (internal quotation marks omitted) (quoting Gregory v. Ashcroft, 501 U.S. 452, 461-62 (1991)). Accordingly, the Eleventh Circuit reasoned, “the states are responsible for enacting ‘a complete code for … elections,’ including ‘regulations relati[ng] to … prevention of fraud and corrupt practices [and] counting of votes.’” Meadows, 88 F.4th at 1346 (quoting Moore v. Harper, 143 S. Ct. 2065, 2085 (2023) (first alteration in original) (internal quotation marks omitted) (quoting Smiley v. Holm, 285 U.S. 355, 366 (1932)).
In contrast to this plenary authority held by the states, the president does not hold a roving mandate to intervene in the states’ administration of elections. Neither Trump nor Meadows have identified a congressional statute granting the president authority to supervise state elections as a general matter or through the particular conduct that forms the basis of the criminal charges against them. Indeed, Meadows provided only “two sources of election-related authority within the executive branch: the Department of Justice Civil Rights Division and its Election Crimes Branch.” Id. Neither source could plausibly authorize President Trump to call the Georgia Secretary of State imploring him to “find” the precise number of votes needed for Candidate Trump to prevail in the state’s election.
Judge Chutkan might also hold, in the alternative, that even if such conduct were somehow official, the Government can easily meet its burden of rebutting that presumption under the Supreme Court’s test. As Justice Barrett explained, “the indictment alleges that the President ‘asked the Arizona House Speaker to call the legislature into session to hold a hearing’ about election fraud claims. The President has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power.” Barrett Op. at 3-4; see also majority opinion at 28 (“Unlike Trump’s alleged interactions with the Justice Department, this alleged conduct cannot be neatly categorized as falling within a particular Presidential function.”) Accordingly, as with the allegations related to the alternate elector plan, there are already at least four votes on the Supreme Court to find these allegations not immune.
Given the absence of any constitutional or statutory authority for Trump’s actions, we again believe it is likely that Judge Chutkan will and should determine that this conduct is largely not immune.
5. Vice President Pence Plan
The Supreme Court held that Trump’s interactions with Vice President Pence are at least presumptively immune because all of a president’s interactions with the vice president are official. It left open, however, whether Trump’s interactions with Pence are ultimately immune. The Court remanded to the trial court to determine, as a matter of law, “whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.” Op. at 24. If the prosecution does not pose such dangers, then Trump is not immune.
As an initial matter, the allegations related to Trump’s pressuring Vice President Pence do not target internal executive branch functions at all. The Court recognized that Pence was acting in his capacity as an Article I officer when presiding over the congressional proceedings on January 6, 2021. In this respect, the allegations related to pressuring Pence are fundamentally different from the allegations related to the Department of Justice. (See also Philip Bobbitt’s analysis on this point.) The latter allegations, the Court emphasized, concern interactions fully within the executive branch. The indictment thus sought to criminalize, in those allegations involving the DOJ, conduct that was purely intra-branch interactions within the executive branch, of which the president is the constitutional head. By contrast, the allegations related to pressuring Pence span from the executive branch to the legislative branch (and, here as well, the president had no constitutionally assigned function in that certification process). They amount to the president trying to convince a member of the legislative branch to take plainly unlawful and unconstitutional action. Prosecuting such conduct therefore would not impair the internal functioning of the executive branch.
Nor would prosecuting Trump for pressuring the Vice President to take plainly unconstitutional actions with respect to the electoral count intrude on the executive branch’s proper functioning in its relations with the legislative branch. The Court did recognize that the Vice President has substantive powers in his legislative role, such as casting a tie-breaking vote in the Senate. In that context, the President may lobby the Vice President to “advance the President’s agenda in Congress.” Op. at 24. Even though such communications with the Vice President would not be purely intra-executive branch, the Court suggested that they might nonetheless be shielded by immunity. But as we previously explained, the Vice President has no role in the electoral count beyond “open[ing] all the certificates” pursuant to the Twelfth Amendment and the purely ministerial responsibilities specified by the applicable statute (which in 2021 was the Electoral Count Act of 1887). A president attempting to persuade or pressure a vice president to reject electoral votes or delay the electoral count unilaterally is thus akin to attempting to persuade or pressure the Vice President to block legislators’ access to the Capitol building or to remove the Speaker of the House, or take a similarly unlawful action under some purported legalistic cover. It falls so far outside the Vice President’s constitutional authority that prosecuting Trump for pressuring Pence to take those unconstitutional actions would not infringe on the legitimate functioning of the executive branch.
6. Conduct Related to the Congressional Count on January 6
The next set of allegations concern Trump’s attempt to pressure members of Congress on January 6, 2021 to delay the electoral count. Once it became clear Vice President Pence would not unlawfully interject himself into the proceedings, and rioters had begun to breach the Capitol grounds, Trump allegedly exploited the ensuing violence and chaos to further effectuate his ends. According to the indictment, he reached out to lawmakers directly (along with, and through, his co-conspirators) continuing to promote false claims of election fraud and imploring them to object to or slow down the count. The Court did not determine whether any of these communications with members of Congress constituted an official act by the President, leaving that decision to Judge Chutkan.
A fair minded application of the Court’s ruling to the known facts indicates that this conduct was not within the president’s official duties. These acts plainly concern “allegations involv[ing] Trump’s interactions with persons outside the Executive Branch.” Op. at 25. Moreover, a president attempting to secure his own election by pressuring non-executive branch officials to make objections to the electoral count allegedly based on knowingly false information cannot plausibly be considered official conduct. The President has no official role in the electoral count. Trump’s actions on January 6 are categorically different from lobbying a member of Congress to pass a piece of legislation or approve a nominee. As opposed to nominating an official or signing a piece of legislation, the President is simply not involved in the process of certifying the election results. The President cannot crowbar himself into the process, where there is no constitutional or statutory authority to do so, and then claim those acts are official. His lobbying attempts, like those of any other disappointed presidential candidate, are actions taken as an unsuccessful candidate rather than as a sitting president. For these reasons, Judge Chutkan could also rule that if these actions were somehow considered official, prosecuting the alleged conduct would easily satisfy the test for rebutting the presumption of immunity.
President Trump’s attempts to convince members of Congress to unlawfully object to the electoral count therefore likely do not fall within the scope of the immunity the Court recognized.
7. Pressuring the Department of Justice
Finally, the Supreme Court held that the allegations related to the Department of Justice — including Trump pressuring DOJ officials to release a statement falsely stating that they had found evidence of fraud and Trump’s efforts involving replacing the Acting Attorney General — are shielded from prosecution. The Court determined that because “the President cannot be prosecuted for conduct within his exclusive constitutional authority,” Trump is “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.” Op. at 20-21.
Conclusion
In this essay, we have surveyed how the Supreme Court’s decision on presidential immunity will apply the tranches of evidence in the indictment against Donald Trump for his attempt to overturn the results of the 2020 presidential election.
The picture that emerges from this analysis is a case that albeit narrowed — is still plainly viable as a criminal prosecution. As the case moves forward in Judge Chutkan’s trial court, a central question will become: which allegations that survive the immunity test are sufficient to prove the criminal case against Trump?
The answer, we believe, is that the alternate electors scheme alone should be sufficient to sustain the criminal charges. That scheme involved the submission of fraudulent papers as part of a conspiracy to thwart the proper functioning of the electoral count so Trump could unlawfully remain in power. The pressure campaign on Pence to unilaterally interfere with the electoral count compounds that unlawful conduct — not only did Trump organize the submission of fraudulent papers in the hope they would be accepted, he corruptly attempted to convince someone who participated in the subsequent official proceeding to unlawfully accept those papers. What’s more, the allegations include that Trump knew his claims of election fraud were false. And the indictment alleges that Trump and his private attorneys, acting as co-conspirators, filed false statements in state courts and launched litigation as a pretext to effectuate their scheme. The allegations about state officials and the Department of Justice provide additional context to the criminal scheme, but ultimately they are not essential to proving the crimes were committed.
In the coming months, Judge Chutkan’s courtroom will see proceedings to answer the ultimate question of immunity. As our analysis in this essay shows, it is likely that most of the conduct alleged in the indictment is not shielded from criminal prosecution. And as the case moves forward, we believe that a sufficient core of criminal conduct remains subject to prosecution. In short, and as we assume his own lawyers have counseled him, former president Trump remains at significant peril in the January 6 case against him.
Editor’s note: The annotated, color-coded indictment is available: here.