With the caveat that others have followed the matter much more closely than I have, I’ll take a stab at parsing the Court’s order granting certiorari in Trump v. United States.
1. Let’s start by comparing the question that the Court drafted to the questions that Donald Trump and special counsel Smith had posed. Here is the Court’s question:
Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.
Here is the question that Donald Trump presented in his application for a stay of the D.C. Circuit’s ruling (which the Court treated as a petition for writ of certiorari):
Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President’s official acts, i.e., those performed within the “‘outer perimeter’ of his official responsibility.” Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (quoting Barr v. Matteo, 360 U.S. 564, 575 (1959)).
And here is how special counsel Jack Smith presented the issue in his earlier petition for certiorari before judgment (which the Court denied in late December):
Whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.
Whereas Trump and Smith present the question as one of absolute immunity, the Court drops the word absolute and adds the phrase “and if so to what extent.” In its rather awkward phrase “conduct alleged to involve official acts”—it’s Trump who is arguing that his charged conduct involves “official acts”—the Court also adopts a middle position between Trump’s definition of “official acts” and Smith’s “crimes committed while in office.”
So the Court, as law professor Jack Goldsmith suggested in this tweet thread yesterday, seems to want the parties to explore whether there is any intermediate position between complete immunity for criminal prosecution for official acts and no immunity—e.g., per Goldsmith, “a form of immunity tied to a ‘subset’ of official acts.” That obviously doesn’t mean that the Court or any justice is committed to some sort of intermediate position, nor does it indicate which side of the line Trump’s charged conduct would fall on. (I’m doubtful that a coherent middle position exists.)
2. One other curious aspect of the order is that the Court denies Trump’s application for a stay but effectively grants him the same relief through the unusual maneuver of directing the D.C. Circuit not to return the case to the district court for further action:
Without expressing a view on the merits, this Court directs the Court of Appeals to continue withholding issuance of the mandate until the sending down of the judgment of this Court. The application for a stay is dismissed as moot.
Why this roundabout approach? In order to obtain a stay, Trump would need five justices to conclude that there is “a fair prospect that a majority of the Court will vote to reverse the judgment below.” The Court’s failure to grant a stay suggests that five justices did not believe that he had met that threshold. If so, that might mean that Trump faces a very uphill battle in the Court.
Why then resort to the alternative of directing the D.C. Circuit “to continue withholding issuance of the mandate”? The Court’s grant of certiorari—an action that requires the votes of only four justices—would make it very unseemly to have Smith’s prosecution proceed at the very time that the Court was deciding the immunity issue. And unlike with a stay, there is, I gather, no well-established standard for directing a court to withhold the mandate.
I don’t mean to suggest that we can infer that there were only four votes for certiorari. A justice who did not believe the standard for a stay was met could also have voted for certiorari and might therefore find the Court’s alternative very attractive. Jack Goldsmith, who very much believes that Trump should lose, opined some weeks ago that a flaw in the D.C. Circuit’s reasoning meant that the Court should grant review. Some justices might well have shared that view.