The Supreme Court’s presidential immunity ruling was a punching bag at this month’s Democratic National Convention, where it was lambasted by speaker after speaker, and in Congress, where Senate Majority Leader Charles E. Schumer (N.Y.) is threatening legislation to strip the justices of jurisdiction. Democrats believe, probably rightly, that the issue is a political winner for them, and a useful bludgeon against the court’s conservative majority.
That’s the backdrop for prosecutors’ aggressive superseding indictment of former president Donald Trump for trying to overturn the 2020 election. If Trump wins this November, the case will end. But if Vice President Kamala Harris wins, prosecutors are making sure the immunity ruling, and Trump, will remain in the political spotlight. Years of ongoing litigation will provide a constant source of polarizing political material, but the effects on the judiciary and the country might be less sanguine.
In his July opinion in Trump v. United States, Chief Justice John G. Roberts Jr. explained that prosecutors may not criminally charge presidents for exercising their “core constitutional powers.” That meant Trump’s communications with his Justice Department in the course of his efforts to reverse the election had to be excluded from the indictment.
As for other official acts, such as Trump’s efforts to persuade Vice President Mike Pence to somehow intervene in Congress’s electoral-vote count on Jan. 6, 2021, the Supreme Court said Trump is “presumptively immune.” But it left open the possibility that prosecutors could “rebut the presumption of immunity.”
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The Biden Justice Department could have responded to the ruling in a number of ways. It could have paused to let the next attorney general decide how to proceed. It could have changed the indictment — particularly by removing Trump’s browbeating of Pence — in an effort to minimize further friction with the courts.
Instead, prosecutors barreled ahead with the Pence allegations and as much of the original indictment as the Roberts ruling conceivably tolerates. The new indictment signals that they’ll pursue every angle to prosecute Trump to the maximum extent the Supreme Court will allow, come hell or high water. Get ready for titanic litigation over the nature of the president’s relationship with the vice president, the vice president’s relationship to Congress, and the meaning of the Electoral Count Act.
As a former Trump Justice Department official told the Wall Street Journal, prosecutors are “daring the justices to rebuke them again.” Their strategy might well work. Only a bare majority of five justices fully joined the ruling in Trump v. United States. One or more conservative justices might balk at a second immunity ruling in Trump’s favor, especially given Democrats’ political pressure. After all, one thing that probably caught the Supreme Court’s attention the first time around was that prosecutors were trying to rush Trump’s trial in time to influence the 2024 election. Next time around, the political timeline might be less of a concern.
The Justice Department is also testing the limits of the Supreme Court’s ruling in another Jan. 6 case, Fischer v. United States. That case substantially narrowed a 2002 obstruction law that prosecutors used against some Capitol rioters and Trump. The department claimed that it could cover any improper influence of a proceeding, including protests that delay a proceeding. In June, the Supreme Court ruled that prosecutors had overreached. In another opinion by Roberts, the court said the law only covered efforts to interfere with a proceeding by impairing records or evidence.
Yet the Justice Department is audaciously continuing to use the charge against other select riot defendants, apparently on the theory that they “were aware that this proceeding involved records” — “specifically, the electoral votes Congress was to consider.” But what government proceeding doesn’t involve records? Here, prosecutors aren’t so much trying earnestly to comply with the Supreme Court’s ruling as openly testing what they can get away with. The superseding indictment against Trump also keeps the same obstruction charges despite the court’s ruling in Fischer.
Regardless of how the Supreme Court ultimately responds to these challenges, it’s easy to see, as a matter of realpolitik, why a Justice Department led by Democrats would attempt them. The Supreme Court might be an obstacle to Harris’s ability to implement some policies by executive order. Why not keep its controversial rulings in the spotlight and its feet to the fire? This is inter-branch hardball at work: Democrats in Congress and the executive branch are applying intense political pressure against a Supreme Court they loathe and fear.
The vice president said during her convention acceptance speech that America has a “fleeting opportunity to move past the bitterness, cynicism and divisive battles of the past.” That will certainly look quaint if, as the 2026 midterms approach, the news cycle is dominated by a Trump trial in D.C. — and if his appeals from conviction put the Supreme Court on the spot again in 2028.
The legal landscape is murky, but at least the indictment makes one thing clear: Some “divisive battles of the past” can be awfully convenient to keep alive. Even a politically defeated Trump could be a political bonanza for Democrats in a Harris term.