How far is presidential immunity? Questions remain after Trump cases drop: ANALYSIS

In July, the U.S. Supreme Court adopted what one judge called “the rule for the ages.” presidential immunity.

But dismissal of special counsel Jack Smith’s lawsuit to overturn federal election Donald Trump It leaves unanswered important questions about the scope of executive power.

Smith’s criminal prosecution would be the first major test of the court’s blockbuster decision; The conservative majority held that former presidents were entitled to absolute immunity for “essential” constitutional functions and presumptive immunity for “official” actions, but not immunity for “unofficial” actions. ” behaves.

Chief Justice John Roberts said what constitutes an official or unofficial action raises “difficult questions” and is largely left to lower courts to parse answers through hearings and appeals on specific facts and actions.

Could Trump be held responsible for the alleged pressure on then-Vice President Mike Pence to unilaterally reject the 2020 election results? What about his false statements to the public about voter fraud?

That’s impossible to say for now, as Smith moved to dismiss the case after Trump’s victory in 2024, citing the Justice Department’s longstanding policy barring prosecution of a sitting president. He also dropped the classified documents case against Trump.

“This uncertainty about the scope of presidential immunity raises the specter, both for Trump and future presidents, that they are truly above the criminal law,” said David Schultz, a professor of political science and legal studies at Hamline University in Minnesota.

Trump already enters office with less potential control than in his first term. Both the House of Representatives and the Senate will be controlled by Republicans, eliminating the possibility of using two tools such as congressional oversight and impeachment if accused of overstepping a traditional line.

Given that this is the last term he can serve, he will not be subject to electoral responsibility.

The possibility of criminal prosecution would normally be another check, but experts are not so sure after the Supreme Court decision.

Michael Gerhardt, a constitutional law professor at the University of North Carolina, said the immunity ruling “will undoubtedly ensure that there are very few, very limited guardrails against abuse of power.”

“To the extent that there is a concern that encourages him to take action regardless of the consequences of criminal prosecution, that is a real concern,” said Jessica Roth, a Cardozo School of Law professor and a former federal prosecutor.

The Supreme Court’s liberal justices expressed similar fears in their dissenting opinion, but Chief Justice Roberts pushed back, arguing that the majority opinion “does not place itself above the law.”

“The President, like everyone else, is subject to prosecution in his unofficial capacity,” he wrote. “But unlike anyone else, the President is an organ of government, and the Constitution grants him broad powers and duties.”

U.S. District Court Judge Tanya Chutkan dismissed without prejudice the lawsuit to overturn the federal election; This means, in theory, charges could be refiled when Trump leaves office. However, experts have noted that such a scenario is highly unlikely and could face statute of limitations or other issues.

Some immunity questions may still be relevant in state lawsuits against Trump in New York and Georgia, but those too have stalled in recent weeks.

Trump was convicted by a jury on 34 felonies in connection with hush money payments made just before the 2016 election. Now he wants the case dismissed, citing the U.S. Supreme Court’s immunity decision. The judge indefinitely postponed the sentence to be given to Trump until the problem is resolved.

“This is where we will see the most rapid testing of the Supreme Court decision,” said Norm Eisen, a senior fellow at the Brookings Institution who served as special counsel to the House Judiciary Committee during Trump’s first impeachment trial.

Still, Eisen said, “We’re not going to get all the answers in the state case because it’s a pretty superficial immunity claim.”

Eisen noted that ongoing investigations against other figures involved in efforts to overturn the 2020 election could keep at least some of Trump’s past behavior under scrutiny.

“(Trump) may be untouchable, he may be in office, but there have been lawsuits filed all over the country against fake voters,” Eisen said. “And these cases will continue to go to trial and will shed light on Trump’s involvement, even though he is not a defendant in these cases. This is certainly another place where there will be some sort of public narrative about what happened, Trump’s role in this, and whether he should be held responsible.”