Donald Trump could ask a judge to declare that the election case against him is over, a law professor has said.
New York law professor Stephen Gillers told Newsweek that it would be a bold move on Trump’s part after chief prosecutor Jack Smith filed a new indictment on Tuesday.
Smith created the new indictment in response to a July 1 ruling by the Supreme Court, giving the president broad immunity from prosecution except for private conduct.
A hearing on the new indictment, which replaces an older one, is expected to take place before trial judge Tanya Chutkan.
“Trump could seek to delay the hearing given the proximity to the election. Or he might make a bolder argument and argue that no hearing is even needed because what Smith now calls ‘private conduct’ is unquestionably official conduct,” Gillers said.
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He added that Smith’s new indictment, which focuses on Trump’s private rather than presidential conduct, will be the subject of a major legal challenge by Trump’s legal team.
“The fact that Smith calls conduct private and therefore not immune does not mean the courts, or Trump, will accept this characterization of the conduct.”
“This is why a hearing will be needed to develop the facts that will enable Judge Chutkan and eventually higher courts to decide whether the alleged conduct is or is not private, and if not private, whether the conduct is immune,” he said.
Trump was indicted on four counts of allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021 riot at the U.S. Capitol. The Republican presidential nominee has pleaded not guilty and has said the case is part of a political witch hunt.
The Supreme Court ruled 6-3 on July 1 that presidents have broad immunity for official acts. The court said that presidents have absolute immunity for core political acts and have some immunity for other acts committed as president, but no immunity for strictly private conduct.
It also ruled that official acts cannot be used as evidence if taking a case against a president for unofficial acts—a part of the ruling that is highly relevant to the Trump case.
Newsweek sought email comment on Thursday from attorneys for Trump and from the office of special counsel Smith.
Gillers said that Smith could have taken a different route to deal with the new protections the Supreme Court has given Trump.
That would have involved convincing a judge that Trump did not have immunity for presidential acts that are defined by legislation.
According to the July 1 Supreme Court ruling, these do not have the same immunity as constitutionally protected presidential acts.
“The court’s decision gave the president immunity for conduct pursuant to his constitutional powers and presumptive. immunity for other official conduct such as conduct based on power granted by legislation.”
“Smith could have sought to defeat the presumption of immunity for official acts based on legislation. But he decided to do something safer. He alleges only criminal acts Trump committed in his personal capacity where, the Court told us, he has no immunity at all,” he said.
“However, the fact that Smith calls conduct private and therefore not immune does not mean the courts, or Trump, will accept this characterization of the conduct. This is why a hearing will be needed to develop the facts that will enable Judge Chutkan and eventually higher courts to decide whether the alleged conduct is or is not private and if not private, whether the conduct is immune,” Gillers said.
