Special counsel Jack Smith and former President Trump's lawyers will enter what Axios calls a war of attrition with evidence in the Jan. 6 case to determine what is considered an official presidential act. The Supreme Court ruled that Trump has immunity for official acts but didn't conclude which Jan. 6-related communications fall within that scope, leaving in the purview of lower courts what former federal prosecutors said is a granular and "painstaking process." Chris Mattei, a former federal prosecutor in Washington, D.C., called the high court ruling "a sword with two very sharp blades." He explained that one "carves out a huge amount of conduct from being prosecutable — and another ... slashes away at the type of evidence that the government could use to prosecute that small band of conduct that can now be called unofficial conduct."
The Supreme Court determined the former president is entitled to "absolute immunity" for actions within his conclusive authority; "presumptive" immunity for other official acts; and "no immunity" for unofficial acts."
Official actions can't be used as evidence in demonstrating criminality in unofficial actions, the court determined. Shan Wu, another former federal prosecutor in Washington, D.C., called that "a very confusing part of the opinion." Neama Rahmani, a former federal prosecutor in California, said the prosecution will seek to prove that Trump's communications such as those with state officials and former Vice President Pence constitute campaigning. Trump's lawyers are expected to argue that those communications were part of the former president's oversight of the election. "Is this campaigning or is this him auditing the election as part of his duties as Commander in Chief?" Rahmani asked. "That's dubious ...but that would be the argument."
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