SCOTUS granted Donald Trump immunity for official acts. What does that means for his Georgia case?

TRANSCRIPT

Peter Biello: In a decision released today, the U.S. Supreme Court has granted U.S. presidents immunity for official acts. The decision extends the delay in the Washington criminal case against Donald Trump on charges he plotted to overturn his 2020 presidential election loss. Included in that case are Trump's attempts to convince Georgia officials to "find" enough votes to give him the win in Georgia. For more on this, we turn to Anthony Michael Kreis, a constitutional law professor in political science at Georgia State University College of Law. Welcome to the program.

Anthony Michael Kreis: Thank you.

Peter Biello: While the 6-to-3 conservative majority gave broad immunity to the president for things in his official capacity, what about the call with Secretary of State Brad Raffensperger, in which Trump asked to find more than 11,000 votes to give him the win in Georgia? Apparently that's not so clear-cut. The Supreme Court sent that back to the trial court to determine whether any of that was part of an official duty. What did you make of that?

Anthony Michael Kreis: Well, I think it makes it fairly clear that a lot of the conduct that has been alleged in the Fulton County indictment will probably withstand scrutiny under the test that was laid down by the Supreme Court today. Because the simple fact is this: If Donald Trump was acting as Donald Trump candidate, Donald Trump, you know, a person running for for political office, that's not going to be the kind of thing that gets immunity. If Donald Trump is acting in that way, as it seems to be, both in tone and context, in terms of the demands he was making of Brad Raffensperger, that's going to be the kind of thing that is — is presumably prosecutable in Fulton County and in the federal system as well. What I think is important here to remember is that this is not the kind of internal, executive federal branch dialogue, official decision making, official federal act that the Supreme Court says can't be touched by federal or state prosecutors. It's reaching outside the federal government and asking for a particular outcome that doesn't really seem consistent with what a president would do, in their — in their official duty or capacity.

Peter Biello: That said, it's going to come down to the opinion of — of judges about whether or not that conduct was quote unquote, "official." And this is not a question specific to Trump, but in general, now with this new — new way of thinking about things. Presidents can appoint these judges. Does this now mean that presidents, if they get the right judge, can have a partisan ally on their side and get them out of trouble?

Anthony Michael Kreis: Well, it certainly has always been the case that the judges tend to have an ideological disposition. And it is true in the federal system in particular, that that's kind of a heightened issue. But we do know who in this instance has this case: Judge Chutkan, and the D.C. circuit will oversee ... oversee her decisions. But in the state system, presidents don't have that luxury. And so there's a kind of additional layered independence because of federalism issues that — that isn't necessarily present in the federal system, for a president who might be before a judge that they had appointed themselves or their successor, who is an ideological ally, appointed. So those are — that's always an issue, it's always a concern. But — but here in Fulton County in particular, you know, Judge McAfee, or a judge in a state court dealing with a similar kind of issue,  will have a little bit additional independence in terms of — of ideological attachment to a president, perhaps.

Peter Biello: So it seems like what you're saying, just to put a fine point on it, is that the state case, the Fulton County case against Trump, won't really be impacted by what the Supreme Court's done today.

Anthony Michael Kreis: By and large, I think it's not going to be impacted. There are really important issues, though, that that do get raised by the court's decision today. Namely, there are some kinds of internal conversations and orders that are part of the Fulton County indictment. Because not only is Donald Trump charged here, but so are some of his administration officials: Jeff Clark, who worked for the Department of Justice; Mark Meadows, who was his White House chief of staff. Now, they could be prosecuted as as former federal officials for unlawful acts, but evidence of conversations that they might have had with — with Donald Trump while he was president? Those kinds of things can't be used as evidence against Donald Trump. And so there might be certain, allegations or pieces of evidence that will get knocked out when used or attempted to be used against Donald Trump. And that raises one other important issue, which is: How do you try all these defendants together? It is less likely now, that — that you may have, in particular, Jeff Clark, who worked for the Department of Justice, tried alongside at the same defense table as Donald Trump because there's evidence you could use against Jeff Clark that you can't use against Donald Trump. A little less clear how that might work with Mark Meadows, because, because of how the evidence kind of shook out there. But that does certainly complicate things. And there's a — there's an added layer of complexity today that wasn't present yesterday in the Fulton County case. But at the end of the day, the overwhelming majority of the charges and pieces of evidence will stand.

Peter Biello: And when you're referring to the other defendants here, you're referring to actions related to Trump and his co-conspirators allegedly looking for alternate slates of electors to replace those that were — that were duly elected in 2020.

Anthony Michael Kreis: That's correct.

Peter Biello: And is there anything else about that case that stands out to you, that part of the case? I know we spoke about Brad Raffensperger a bit, but what about the electors? Is there anything else regarding that in the constitutional claims that that fell out of the "official duties" perimeter?

Anthony Michael Kreis: Well, we already had some interesting rulings from the federal courts here in Georgia, which were dealing with a separate issue about whether or not the former federal employees — former federal officials, namely Jeff Clark or Mark Meadows — could remove their cases into federal court from Fulton County Superior Court because they were doing official acts that were, you know, blessed by federal law and — and that were, protected by the Constitution. And — and the federal courts roundly rejected that claim and basically said that the actions that they undertook, by and large, here in Georgia, were not furthering a federal interest because, right, presidential electors are chosen by a system that is prescribed by state law, right? They, the states, run elections. It's not the federal government's prerogative to get terribly involved in how, votes are counted and to make sure that votes are counted accurately.

Peter Biello: So, in other words, there's no real reason a federal official like President Trump would have had to get involved in something like that. Therefore, it's not an official duty.

Anthony Michael Kreis: That's correct. And so a lot of those claims will probably fall by the wayside and will — will be ruled in favor of Fani Willis, because Donald Trump was acting as a candidate, not as president of the United States in, in, by and large, most of those issues. Again, the crux of that analysis, I suspect, will be the fact that Donald Trump was reaching outside of the federal government, outside of the executive branch, right towards state actors, and people in state government, that he has no right oversight over, that he has no control over as an official matter, and that he was doing that reaching out not because he was president, but because he was a candidate who wanted a particular electoral outcome that benefited him personally. And I think that that's where most of this analysis will fall.

Peter Biello: Well, Anthony Michael Kreis, constitutional law professor and political scientist at Georgia State University College of Law, thank you so much for speaking with me.

Anthony Michael Kreis: Thank you.