Barrett asked about turning to a private attorney willing to spread knowingly false election fraud claims or conspiring to enter a court filing containing false allegations? Private, Sauer agreed.

Directing an effort involving private actors and attorneys “to submit fraudulent slates of presidential electors to obstruct the certification proceeding,” she queried? Also private.

Sauer cited a list of actions described in the indictment that the Trump team believes represent official business, such as meeting with Justice Department officials, deciding who’s going to be the acting attorney general, communicating with the U.S. public and communicating with Congress about matters of federal concern.

Civil case guidance

A set of separate civil lawsuits seeking to hold Trump liable for the Capitol attack were sent back to a judge in December to parse whether his actions — especially his participation in a Jan. 6 rally — were official and entitled to immunity. That process is expected to stretch into the fall. But an appellate court provided some guidance that might shed light in addressing the question of criminal immunity.

“If it is clothed in the trappings of an official function based on objective indicia, it more likely constitutes an official act for immunity purposes than if it bears the hallmarks of reelection campaign activity,” a U.S. Court of Appeals for the D.C. Circuit panel wrote.

In the civil case, Trump’s lawyers were given several months to gather evidence on whether government resources were used to fund or organize the rally. In the criminal case, Chutkan would likely request briefings from Trump and Smith and hold hearings to determine the private versus official breakdown of actions in the indictment.

The process could be messy and contested, said David Weinstein, a former federal prosecutor. The timing depends on whether Trump’s team can immediately appeal decisions and whether judge or jurors make the determinations.

“I think they will look at the counts in the indictment,” said Weinstein, now a partner at Jones Walker LLP. “The burden is going to be on the defense to show that Trump was doing this in the course of his official duties. Then the question becomes what burden of proof are they going to require.”

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(With assistance from Zoe Tillman.)

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