Justices Seem Ready to Limit the 2020 Election Case Against Trump (2024)

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Here are four takeaways from the Supreme Court hearing on Trump’s claim to immunity.

Several justices seemed to want to define some level of official act as immune.

Although Mr. Trump’s claim of near-absolute immunity was seen as a long shot intended primarily to slow the proceedings, several members of the Republican-appointed majority seemed to indicate that some immunity was needed. Some of them expressed worry about the long-term consequences of leaving future former presidents open to prosecution for their official actions.

Among others, Justice Brett Kavanaugh compared the threat of prosecution for official acts to how a series of presidents were “hampered” by independent counsel investigations, criticizing a 1984 ruling that upheld a now-defunct law creating such prosecutors as one of the Supreme Court’s biggest mistakes. Chief Justice John G. Roberts Jr. criticized an appeals court ruling rejecting immunity for Mr. Trump, saying he was concerned that it “did not get into a focused consideration of what acts we are talking about or what documents are talking about.”

The Democrat-appointed justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — asked questions indicating greater concern about opening the door for presidents to commit official crimes with impunity.

The arguments signaled further delay and complications for a Trump trial.

If the Supreme Court does place limits on the ability of prosecutors to charge Mr. Trump over his official actions, it could alter the shape of his trial.

A decision to send all or part of the case back to the lower courts could further slow progress toward a trial, increasing the odds that it does not start before Election Day.

Of the matters listed in the indictment, some — like working with private lawyers to gin up slates of fraudulent electors — seem like the private actions of a candidate. Others — like pressuring the Justice Department and Vice President Mike Pence to do things — seem more like official acts he took in his role as president.

At one point, Justice Amy Coney Barrett suggested that prosecutors could simply drop Mr. Trump’s arguably official actions from their case and proceed to a swift trial focused only on his private actions. And D. John Sauer, the lawyer for Mr. Trump, told the court that no evidence of Mr. Trump’s official actions should be allowed into the trial.

But Michael R. Dreeben, a Justice Department lawyer arguing on behalf of the special counsel’s office, said the indictment laid out an “integrated conspiracy” in which Mr. Trump took the official actions to bolster the chances that his other efforts to overturn the election would succeed.

He argued that even if the court holds that Mr. Trump has immunity from liability for his official actions, prosecutors should still be allowed to present evidence about them to the jury because the actions are relevant to assessing his larger knowledge and intentions — just as speech that is protected by the First Amendment can still be used as evidence in a conspiracy case.

The hearing revolved around two very different ways of looking at the issue.

Looming over the hearing was a sweeping moral question: What effect might executive immunity have on the future of American politics?

Not surprisingly, the two sides saw things very differently.

Mr. Sauer claimed that without immunity, all presidents would be paralyzed by the knowledge that once they were out of office, they could face an onslaught of charges from their rivals based on the tough calls they had to make while in power. He pictured a dystopian world of ceaseless tit-for-tat political prosecutions that would destroy the “presidency as we know it.”

Envisioning the opposite scenario, Mr. Dreeben worried that any form of blanket immunity would place presidents entirely outside of the rule of law and encourage them to commit crimes, including “bribery, treason, sedition, even murder,” with impunity.

“The framers knew too well the dangers of a king who could do no wrong,” he said.

Both sides found advocates for their positions on the court.

Justice Samuel A. Alito Jr. clearly seemed worried that without some form of criminal immunity, former presidents would be vulnerable to partisan warfare as their successors used the courts to go after them once they were out of office. And that, he added, could lead to endless cycles of retribution that would be a risk to “stable, democratic society.”

Justice Ketanji Brown Jackson appeared more concerned that if presidents were in fact shielded by immunity, they would be unbounded by the law and could turn the Oval Office into what she described as “the seat of criminality.”

What happens next?

There did not seem to be a lot of urgency among the justices — especially the conservative ones — to ensure that the immunity question was resolved quickly. That left open the possibility that Mr. Trump could avoid being tried on charges of plotting to overturn the last election until well after voters went to the polls to decide whether to choose him as president in this election.

And if he is elected, any trial could be put off while he is in office, or he could order the charges against him dropped.

It could take some time for the court to do its own analysis of what presidential acts should qualify for the protections of immunity. And even if the justices determine that at least some of the allegations against Mr. Trump are fair game for prosecution, if they do not issue a ruling until late June or early July, it could be difficult to hold a trial before November.

That would become all but impossible if the court took a different route and sent the analysis back to the trial judge, Tanya S. Chutkan. If Judge Chutkan were ordered to hold further hearings on which of the indictment’s numerous allegations were official acts of Mr. Trump’s presidency and which were private acts he took as a candidate for office, the process could take months and last well into 2025.

A spectacle outside the Supreme Court for Trump’s defenders and detractors.

Mr. Trump was not in Washington on Thursday morning — in fact, he was in another courtroom, in New York. But the spectacle that pierced the relative tranquillity outside the court was typical of events that involve him: demonstrations, homemade signs, police, news media, and lots and lots of curious onlookers.

One man, Stephen Parlato, a retired mental health counselor from Boulder, Colo., held a roughly 6-foot-long sign with a blown-up photo of Mr. Trump scowling that read, “Toxic loser.” The back of the sign featured the famous painting by Cassius Marcellus Coolidge of dogs playing poker, adorned with the words, “Faith erodes … in a court with no binding ethics code.” He made the sign at FedEx, he said.

The Supreme Court’s decision to even hear the case, which has delayed Mr. Trump’s election interference trial, was “absurd,” he said.

“I’m a child of the late ’60s and early ’70s and the Vietnam War,” said Mr. Parlato, dressed in a leather jacket and cowboy hat. “I remember protesting that while in high school. But this is very different. I’m here because I’m terrified of the possibility of a second Trump presidency.”

Inside the court, Jack Smith sat to the far right of the lawyer arguing on behalf of his team of prosecutors, Michael R. Dreeben, a leading expert in criminal law who has worked for another special counsel who investigated Mr. Trump, Robert S. Mueller III.

Among those in attendance were Jane Sullivan Roberts, who is married to Chief Justice John G. Roberts Jr., and Ashley Estes Kavanaugh, who is married to Justice Brett M. Kavanaugh.

In an orderly line outside along the side of the court, people were calmly waiting to listen to the arguments from the court’s public gallery. More than 100 people, many of them supporters of Mr. Trump, were in line as of 8:30 a.m. Reagan Pendarvis, 19, who had been waiting there since the middle of the night, said the first person in line had gotten there more than a day before the arguments began.

Mr. Pendarvis, a sophom*ore at the University of California, San Diego who is living in Washington for the spring semester, was wearing a black suit and bright red bow tie. He said he had been struggling to keep warm since he took his place in line.

Mr. Pendarvis, a supporter of Mr. Trump, said he thought that the cases brought against the former president were an uneven application of the law.

“I think a lot of the cases, especially that happen for Donald Trump, don’t really happen for Democrats on the other side,” he said. “That’s just my take on it.”

David Bolls, 42, and his brother, Jonathan, 43, both of Springfield, Va., also in line for the arguments, also contended that the prosecutions against Mr. Trump were an abuse of judicial power.

“For me, I want to see an even application of justice,” David Bolls said.

For others in line, the Supreme Court’s deliberations were not the main draw. Ellen Murphy, a longtime Washington resident, was trying to sell buttons she designs, though she acknowledged that it was unlikely she would be allowed in with all of her merchandise.

Dozens of the buttons, which said, “Immunize democracy now” and “Trump is toast” over a toaster with two slices of bread, were pinned to a green apron she was wearing.

“We lose our democracy,” Ms. Murphy said, “if the president can do whatever he wants just because he’s president.”

Eileen Sullivan contributed reporting.

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What’s next: Much will turn on how quickly the court acts.

In cases that directly affected elections — in which the mechanisms of voting were at issue — the court has sometimes acted with unusual speed.

In 2000, in Bush v. Gore, the court issued its decision handing the presidency to George W. Bush the day after the justices heard arguments.

In a recent case concerning Mr. Trump’s eligibility to appear on Colorado’s primary ballot, the justices moved more slowly, but still at a relatively brisk pace. The court granted Mr. Trump’s petition seeking review just two days after he filed it, scheduled arguments for about a month later and issued its decision in his favor about a month after that.

In United States v. Nixon, the 1974 decision that ordered President Richard M. Nixon to comply with a subpoena for audiotapes of conversations with aides in the White House, the court also moved quickly, granting the special prosecutor’s request to bypass the appeals court a week after it was filed.

The court heard arguments about five weeks later — compared with some eight weeks in Mr. Trump’s immunity case. It issued its decision 16 days after the argument, and the trial was not delayed.

And that question will have profound relevance not only for future presidents, but much more immediately for Donald Trump. The court could decide to draw those rules itself in a broad way for history. Or it could send this case back to a lower court to set the rules of what form immunity could take. If the case is sent back for further proceedings, it could have a dramatic effect on the timing of Trump’s trial, pushing it well past the election in November.

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Dreeben suggests that allegations in the “private acts bucket,” as Justice Jackson just called it, would include things like the scheme to create fake electors and the way in which Trump fomented a mob of his supporters to violently attack the Capitol on Jan. 6.

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Dreeben tries to push back on Kavanaugh’s argument by saying that even after Watergate, even after all of the independent counsel investigations mentioned above, the legal system has survived without “having gone off on a runaway train” of actual criminal prosecutions against former presidents.

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The Supreme Court rejected Bill Clinton’s claim of immunity.

The case was in one sense harder than the one against Mr. Trump, as it involved a sitting president. In another sense, though, it was easier, as it concerned an episode said to have taken place before Mr. Clinton took office (Paula Jones, an Arkansas state employee, said Mr. Clinton had made lewd advances in a hotel room when he was governor of the state).

The case is best remembered for a prediction in Justice Stevens’s majority opinion that “it appears to us highly unlikely to occupy any substantial amount of petitioner’s time.” In fact, it led to Mr. Clinton’s impeachment.

In the same paragraph, Justice Stevens made a second prediction.

“In the more than 200-year history of the Republic, only three sitting presidents have been subjected to suits for their private actions,” he wrote. “If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the presidency.”

Suits against Presidents Theodore Roosevelt and Harry S. Truman were dismissed, and one against President John F. Kennedy involving a car accident during his 1960 campaign was settled. The case against Mr. Clinton added a fourth.

Justice Stevens, who died in 2019, failed to anticipate the enormous volume of civil and criminal litigation in which Mr. Trump and his businesses have been named as defendants.

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The other main topic of discussion has been whether presidents enjoy some form of immunity for carrying out their official duties and, if so, how those official actions are defined. That’s an important question for the Trump election case because Trump has claimed he was acting in his role as president when, by his own account, he sought to root out fraud in the 2020 vote count. It’s also important for a different reason: the justices could send the official acts question back to a lower court to sort out, and that process could take a long time, delaying the case's trial until after this year’s election.

Alito points out that this creates an incentive for presidents to appoint attorneys general who will just tell them that anything they want to do would be legal. Indeed — that is a critique of the Office of Legal Counsel system, in which politically appointed lawyers decide what the law means for the executive branch.

An example: During the George W. Bush administration, memos about post-9/11 surveillance and torture were written by a politically appointed lawyer with idiosyncratically broad views of a president’s supposed power, as commander in chief, to authorize violations of surveillance and torture laws. The Justice Department later withdrew those memos as espousing a false view of the law, but held that officials who had taken action based on those memos could not be charged with crimes.

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The scope and viability of this fraud statute, which is absolutely central to the Trump indictment, wasn’t on the menu of issues seemingly at play in this hearing. Kavanaugh and Alito appear to have gone out of their way to question its use in the Trump case.

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The precedent most helpful to Trump: Nixon v. Fitzgerald.

But the decision also falls well short of dictating the outcome in the case that is being argued on Thursday, which concerns a criminal prosecution, not a civil suit.

The 1982 case arose from a lawsuit brought by an Air Force analyst, A. Ernest Fitzgerald, who said he was fired in 1970 in retaliation for his criticism of cost overruns. By the time the Supreme Court acted, Nixon had been out of office for several years.

“In view of the special nature of the president’s constitutional office and functions,” Justice Lewis F. Powell Jr. wrote for the majority 5-to-4 decision, “we think it appropriate to recognize absolute presidential immunity from damages liability” for Nixon’s official conduct, broadly defined.

But the decision drew a sharp line between civil suits, which it said can be abusive and harassing, and criminal prosecutions like the one Mr. Trump is facing.

“In view of the visibility of his office and the effect of his actions on countless people, the president would be an easily identifiable target for suits for civil damages,” Justice Powell wrote, adding, “The court has recognized before that there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions.”

Chief Justice Warren E. Burger underscored the point in a concurring opinion. “The immunity is limited to civil damages claims,” he wrote.

Even in the context of civil suits, Nixon v. Fitzgerald conferred immunity only on conduct within the “outer perimeter” of a president’s official duties. Jack Smith, the special counsel, has said that Mr. Trump’s efforts to subvert democracy are well outside that line.

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The Justice Department has already granted sitting presidents immunity while they are in office.

This argument boils down to practicalities of governance: The stigma of being indicted and the burden of a trial would unduly interfere with a president’s ability to carry out his duties, Robert G. Dixon Jr., then the head of the Justice Department’s Office of Legal Counsel, wrote in a memo in September 1973. This would prevent the executive branch “from accomplishing its constitutional functions” in a way that cannot “be justified by an overriding need,” he added.

Mr. Dixon, an appointee of President Richard M. Nixon, wrote his memo against the backdrop of the Watergate scandal, when Mr. Nixon faced a criminal investigation by a special counsel, Archibald Cox. The next month, Nixon’s solicitor general, Robert H. Bork, in a court brief, similarly argued for an “inference” that the Constitution makes sitting presidents immune from indictment and trial.

(That same month, Mr. Nixon had Mr. Cox fired in the so-called Saturday Night Massacre. Mr. Nixon’s attorney general and deputy attorney general resigned rather than carry out his orders to oust the prosecutor; Mr. Nixon then turned to Mr. Bork, the department’s No. 3, who proved willing to do it. Amid a political backlash, Mr. Nixon was forced to allow a new special counsel, Leon Jaworski, to resume the investigation.)

The question arose again a generation later, when President Bill Clinton faced an investigation by Kenneth Starr, an independent counsel, into the Whitewater land deal that morphed into an inquiry into his affair with Monica Lewinsky, a White House intern. Randolph D. Moss, Mr. Clinton’s appointee to lead the Office of Legal Counsel, reviewed the Justice Department’s 1973 opinions and reaffirmed their conclusions.

Legal scholars, as well as staff for prosecutors investigating presidents, have disputed the legitimacy of that constitutional theory. In 1974, Mr. Jaworski received a memo from his staff saying he could, in fact, indict Mr. Nixon while he was in office, and he later made that case in a court brief.

And in a 56-page memo in 1998, Ronald Rotunda, a prominent conservative constitutional scholar whom Mr. Starr hired as a consultant on his legal team, rejected the view that presidents are immune from prosecution while in office. Mr. Starr later said that he had concluded that he could indict Mr. Clinton.

“It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” Mr. Rotunda wrote. “In this country, no one, even President Clinton, is above the law.”

Mr. Starr commissioned the Rotunda memo as he was drafting a potential indictment of Mr. Clinton, and Mr. Starr decided that he could charge the president while in office. In the end, however, both Mr. Jaworski and Mr. Starr decided to let congressional impeachment proceedings play out and did not try to bring indictments while Mr. Nixon and Mr. Clinton remained in office.

The question may never be definitively tested in the courts. In 1999, Congress allowed a law that created independent counsels like Mr. Starr — prosecutors who do not report to the attorney general — to expire, and the Justice Department issued regulations to allow for the appointment of semiautonomous special counsels for inquiries into potential high-level wrongdoing in the executive branch.

Special counsels are, however, bound by Justice Departments policies and practices — including the Office of Legal Counsel’s proclamation that sitting presidents are temporarily immune from criminal indictment or trial.

Is there such a thing as executive immunity?

The Supreme Court has further found that while presidents are sometimes immune from judicial subpoenas requesting internal executive branch information, that privilege is not absolute. Even presidents, the court has decided, can be forced to obey a subpoena in a criminal case if the need for information is great enough.

But until Mr. Trump wound up in court, the Supreme Court has never had a reason to decide whether former presidents are protected from being prosecuted for official actions. The Justice Department has long maintained that sitting presidents are temporarily immune from prosecution because criminal charges would distract them from their constitutional functions. But since Mr. Trump is not in office, that is not an issue.

The closest the country has come to the prosecution of a former president over official actions came in 1974, when Richard M. Nixon resigned to avoid being impeached over the Watergate scandal. But a pardon by his successor, President Gerald R. Ford, protected Nixon from indictment by the Watergate special prosecutor.

Mr. Smith’s team has argued that Ford’s pardon — and Nixon’s acceptance of it — demonstrates that both men understood that Nixon was not already immune. Mr. Trump’s team has sought to counter that point by arguing — inaccurately — that Nixon faced potential criminal charges only over private actions, like tax fraud. But the special prosecutor weighed charging Nixon with abusing his office to obstruct justice.

Mr. Trump’s team has argued that denying his claims risks unleashing a routine practice of prosecuting former presidents for partisan reasons. But Mr. Smith’s team has argued that if courts endorse Mr. Trump’s theory, then future presidents who are confident of surviving impeachment could, with impunity, commit any number of crimes in connection with their official actions.

“Such a result would severely undermine the compelling public interest in the rule of law and criminal accountability,” prosecutors wrote.

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Hypothetical questions test the limits of Trump’s immunity claim.

That is what happened in January, when Judge Florence Y. Pan of the U.S. Court of Appeals for the District of Columbia had to press Mr. Sauer to get an answer to a hypothetical question: Are former presidents absolutely immune from prosecution, even for murders they ordered while in office?

“I asked you a yes-or-no question,” Judge Pan said. “Could a president who ordered SEAL Team 6 to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?”

Mr. Sauer said his answer was a “qualified yes,” by which he meant no. He explained that prosecution would be permitted only if the president were first impeached by the House and convicted by the Senate.

Impeachments of presidents are rare: There have been four in the history of the Republic, two of them of Mr. Trump. The number of convictions, which require a two-thirds majority of the Senate: zero.

Mr. Sauer’s statement called to mind a 2019 federal appeals court argument over whether Mr. Trump could block state prosecutors from obtaining his tax and business records. He maintained that he was immune not only from prosecution but also from criminal investigation so long as he was president.

At that time, Judge Denny Chin of the Second Circuit pressed William S. Consovoy, a lawyer for Mr. Trump, asking about his client’s famous statement that he could shoot someone on Fifth Avenue without losing political support.

“Local authorities couldn’t investigate?” Judge Chin asked, adding: “Nothing could be done? That’s your position?”

“That is correct,” said Mr. Consovoy. “That is correct.”

This headline followed: “If Trump Shoots Someone on 5th Ave., Does He Have Immunity? His Lawyer Says Yes.”

For his part, Mr. Sauer does not seem eager to revisit the question about assassinations. Indeed, in asking the Supreme Court to hear Mr. Trump’s appeal, Mr. Sauer urged the justices not to be distracted by “lurid hypotheticals” that “almost certainly never will occur.”

What counts as an official act as president?

The acts by Mr. Trump cited in the indictment include using deceit to organize fake slates of electors and to try to get state officials to subvert legitimate election results; trying to get the Justice Department and Vice President Mike Pence to help fraudulently alter the results; directing his supporters to the Capitol on Jan. 6, 2021; and exploiting the violence and chaos of their ensuing riot.

In its court filings, Mr. Trump’s team has sought to reframe those accusations not only as official actions, but innocuous or even admirable ones.

“All five types of conduct alleged in the indictment constitute official acts,” they wrote. “They all reflect President Trump’s efforts and duties, squarely as chief executive of the United States, to advocate for and defend the integrity of the federal election, in accord with his view that it was tainted by fraud and irregularity.”

Mr. Smith’s team has argued that they should be seen as the efforts of a person seeking office, not of an officeholder carrying out government responsibilities.

“Those alleged acts were carried out by and on behalf of the defendant in his capacity as a candidate, and the extensive involvement of private attorneys and campaign staff in procuring the fraudulent slates as alleged in the indictment underscores that those activities were not within the outer perimeter of the office of the presidency,” they wrote.

Judge Tanya S. Chutkan, who is overseeing Mr. Trump’s case in Federal District Court in Washington, issued her ruling rejecting Mr. Trump’s immunity claim without including any detailed analysis of whether his acts were “official.”

If the Supreme Court were to send the matter back to her to take a stab at answering that question before restarting the appeals process, Mr. Trump will, at a minimum, have used up additional valuable time that could help push any trial past the election.

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Here are the lawyers arguing before the Supreme Court.

On Mr. Mueller’s team, he handled pretrial litigation, defending the scope of the investigation and preventing the office from losing cases on appeal. He also helped with a second part of Mr. Mueller’s investigation, examining whether Mr. Trump had tried to obstruct the inquiry in his dealings with associates involved in the case.

Mr. Dreeben, who was heavily involved in the writing of Mr. Mueller’s final report on his investigation, supported an interpretation of presidential power that emphasized limits on what a president could do while exercising his or her powers, according to “Where Law Ends,” a book written by Andrew Weissmann, another prosecutor on Mr. Mueller’s team.

After Mr. Mueller’s investigation concluded, Mr. Dreeben took a teaching position at Georgetown University’s law school and returned to private practice at O’Melveny, arguing in front of the Supreme Court on behalf of the city of Austin over a First Amendment dispute about the placement of digital billboards.

Opposing Mr. Dreeben in front of the Supreme Court will be D. John Sauer, a lawyer based in St. Louis who once served as the solicitor general of Missouri. Mr. Sauer joined Mr. Trump’s legal team late last year to handle appellate matters, including his challenge to a gag order imposed on him in the election case in Washington.

As Missouri’s solicitor general, Mr. Sauer took part in a last-ditch effort to keep Mr. Trump in power after his defeat in the 2020 election, filing a motion on behalf of his state and five others in support of an attempt by Texas to have the Supreme Court toss out the results of the vote count in several key swing states.

He also joined in an unsuccessful bid with Texas in asking the Supreme Court to stop the Biden administration from rescinding a Trump-era immigration program that forces certain asylum seekers arriving at the southwestern border to await approval in Mexico.

When he left the solicitor general’s office last January, Mr. Sauer, who once clerked for Justice Antonin Scalia, returned to his private firm, the James Otis Law Group. The firm is named after a prominent Revolutionary War-era lawyer who built a career out of challenging abuses by British colonial forces.

To justify his defense in the immunity case, Trump turns to a familiar tactic.

At the core of his immunity defense is a claim that seeks to upend the story told by federal prosecutors in an indictment charging him with plotting to overturn the 2020 election. In that indictment, prosecutors described a criminal conspiracy by Mr. Trump to subvert the election results and stay in power.

In Mr. Trump’s telling, however, those same events are official acts that he undertook as president to safeguard the integrity of the race and cannot be subject to prosecution.

In many ways, Mr. Trump’s immunity claim is breathtaking. In one instance, his lawyers went so far as to say that a president could not be prosecuted even for using the military to assassinate a rival unless he was first impeached.

But the wholesale rewriting of the government’s accusations — which first appeared six months ago in Mr. Trump’s motion to dismiss the election interference case — may be the most audacious part of his defense. It was certainly a requisite step his lawyers had to take to advance the immunity argument.

Other courts have ruled that presidents enjoy limited immunity from civil lawsuits for things they did as part of the formal responsibilities of their job. To extend that legal concept to criminal charges, Mr. Trump’s lawyers needed to reframe all of the allegations lodged against him in the election interference case as official acts of his presidency rather than as the actions of a candidate misusing his power.