How far does presidential immunity extend? Questions remain after Trump cases dropped: ANALYSIS

The U.S. Supreme Court in July issued what one justice called a “perennial rule” on presidential immunity.

But the dismissal of special counsel Jack Smith’s federal election subversion case against Donald Trump leaves key questions about the scope of executive power unanswered.

Smith’s criminal prosecution was expected to be the first major test of the court’s blockbuster ruling, in which the conservative majority held that former presidents were entitled to absolute immunity for “essential” constitutional functions and presumptive immunity for “official” acts, but no immunity for “unofficial” acts. ” acts.

What constituted an official or unofficial act raised “difficult questions,” Chief Justice John Roberts said, and was largely left to lower courts to parse out the answers through hearings and appeals on facts and specific actions.

Could Trump be held responsible for allegedly pressuring then-Vice President Mike Pence to unilaterally reject the outcome of the 2020 election? What about his false statements to the public about election fraud?

It’s impossible to say at this time since Smith has requested that the case be dropped following Trump’s 2024 victory, citing the Justice Department’s long-standing policy against prosecuting a sitting president. He also dropped the classified documents case against Trump.

“This uncertainty about the scope of presidential immunity makes Trump and any future president fear that they are truly above criminal law,” said David Schultz, professor of political science and legal studies at the Hamline University of Minnesota.

Trump already takes office with fewer potential checks than in his first term. The House and Senate will be controlled by Republicans, making congressional oversight and impeachment both tools unlikely to be used if he is accused of crossing a traditional boundary.

He will also not be subject to electoral accountability, given that this is the last mandate he will be able to exercise.

The possibility of criminal prosecution would normally be another check, but experts are no longer so sure about that after the Supreme Court’s decision.

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

“To the extent that there is concern that this will encourage him to act without regard for the consequences of criminal prosecution, that is a real concern,” said Jessica Roth, a professor at Cardozo Law School and a former federal prosecutor.

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

“Like everyone else, the president is being prosecuted in his unofficial capacity,” he wrote. “But unlike everyone else, the president is a branch of government and the Constitution gives him broad powers and duties.”

U.S. District Court Judge Tanya Chutkan dismissed the federal election subversion case without prejudice, meaning that in theory the charges could be brought again when Trump leaves office. However, experts noted that such a scenario is highly unlikely and could run into statutes of limitations or other issues.

Some immunity questions could still arise in the cases against Trump in New York and Georgia — but those, too, have stalled in recent weeks.

Trump was convicted by a jury of 34 counts in connection with hush money payments made just before the 2016 election. He is now seeking to have the case thrown out based on Trump’s immunity ruling. the Supreme Court of the United States. The judge indefinitely postponed Trump’s sentencing until the matter was resolved.

“This is where we would see the Supreme Court’s decision most immediately tested,” 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’s case because it’s a pretty tangential immunity claim.”

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

“[Trump] “He may be immune, he may be in office, but across the country there have been lawsuits filed against bogus voters,” Eisen said. “And these cases will go to trial and shine a light on Trump’s involvement even though he’s not charged in these cases. This is another place where there will certainly be some form of public narrative about what happened. past, his role in all of this and whether he should be held accountable.”