Pity Tanya Chutkan, the punctilious federal district judge in Washington who inherited the ill-fated Jan. 6 prosecution of Donald Trump one year ago and has since done everything by the book, only to be rewarded with an eight-month delay while the defendant pressed his claim that he exists magically above the law.
It was a claim so outrageous, so detached from basic constitutional principles and hard-won lessons of American history, so fundamentally Trumpian, that virtually no serious person would countenance it — no one, that is, until six Supreme Court justices did last month, on the final day of the term.
Now Chutkan has to clean up the mess the right-wing majority made in its ruling, which created a shockingly broad yet poorly defined zone of immunity from criminal prosecution for presidents who can argue that they were engaged in their “official” duties.
This means going line by line through the special counsel Jack Smith’s 45-page indictment and separating the charges that involve official acts from those that are unofficial. The former must be dismissed; the latter might survive. The process will most likely include what some legal observers are calling a “mini-trial,” in which the government would be able to present some of its evidence in open court. It’s a far cry from an actual jury trial — which could and should have taken place months ago and surely would have if the defendant was not named Trump — but at this point it’s the only chance the American people will have to get more clarity on the details of the former president’s role in the Jan. 6 insurrection.
It’s also an opportunity for Chutkan to call the justices’ bluff. When they wrote that it remains possible to hold a president to account for breaking the law, did they mean it?
The best way to get an answer to that question is to apply the methodological rigor the court refused to use. This work is already underway, thanks to the good folks at Just Security, the national-security site that has been obsessively tracking and analyzing the various Trump prosecutions. In a color-coded annotation of the indictment, Just Security breaks down which charges are almost certain to be dismissed (red), which are on the fence (yellow) and which are likely to survive (green).
In the first category are the charges involving Trump’s communications with Justice Department officials, which the Supreme Court explicitly said count as official acts, even though they were plainly based on allegations of election fraud he had been told were false.
Beyond those communications and a few others that Trump had with then-Vice President Mike Pence, however, Just Security’s annotation is a sea of greens and yellows. In other words, a vast majority of Trump’s behavior on and around Jan. 6, 2021, was not taken in any official capacity and should not be immune from prosecution.
This is obvious to anyone with a pair of eyes and a memory of that awful day. The question is whether that category includes the right-wing supermajority of the Supreme Court.
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