The US Supreme Court in July issued what one judge called a “rule for the ages.” presidential immunity.
But dropping the federal election subversion case against special counsel Jack Smith Donald Trump it leaves unanswered key questions about the extent of executive power.
Smith’s criminal prosecution would be the first major test of the court’s successful ruling, in which the conservative majority of former presidents found the right to absolute immunity for “essential” constitutional functions and presumptive immunity for “official” acts, but no immunity for “official” acts. “actions
Whether the action was official or unofficial raised “difficult questions,” Chief Justice John Roberts said, leaving it largely up to lower courts to figure out the answers through hearings and appeals on specific facts and actions.
Could Trump be held responsible for alleged pressure from then-Vice President Mike Pence to unilaterally deny the outcome of the 2020 election? What about false statements made to the public about voter fraud?
That’s impossible to say right now, as Smith moved to drop the case in anticipation of Trump’s 2024 victory, citing a longstanding Justice Department policy barring the president from prosecution. He also dropped the classified documents case against Trump.
“This uncertainty about the scope of presidential immunity raises the specter that Trump and any future president are actually above the criminal law,” said David Schultz, a professor of political science and legal studies at Hamline University in Minnesota.
Former Republican presidential candidate Donald Trump watches a video screen during a campaign rally at the Salem Civic Center in Salem, Va., Nov. 2, 2024.
Evan Vucci/AP
Trump is already entering his first term with less potential scrutiny than he did in his first term. Both the House and the Senate will be controlled by Republicans, making congressional oversight and impeachment two tools that will be impossible to use if he is accused of crossing a traditional boundary.
He will not be subject to electoral responsibility either, since this is the last mandate he can fulfill.
The possibility of criminal charges would normally be another check, but experts aren’t so sure after the Supreme Court’s decision.
Michael Gerhardt, a professor of constitutional law at the University of North Carolina, said the immunity ruling “will undoubtedly ensure that there will be few and relatively limited protections against abuse of power.”
“As far as the concern that this encourages people to take action regardless of the consequences of criminal prosecution, that’s a real concern,” said Jessica Roth, a professor at Cardozo Law School and a former federal prosecutor.
Liberal Supreme Court justices raised similar fears in their dissent, but Chief Justice Roberts pushed back saying the majority’s opinion “doesn’t make it above the law.”
“Like everyone else, the president is supposed to be prosecuted in his unofficial capacity,” he wrote. “But unlike anyone, the president is a branch of government, and the Constitution has great powers and duties.”
The Supreme Court meets in Washington on November 2, 2024.
J. Scott Applewhite/AP
U.S. District Court Judge Tanya Chutkan dismissed the federal election subversion lawsuit without prejudice, meaning the charges could theoretically be refiled once Trump leaves office. Although experts have pointed out, this situation is very difficult and may run into prescription or other problems.
Some immunity questions may still be at stake in the state cases against Trump in New York and Georgia, but those too have stalled in recent weeks.
Trump was indicted by a grand jury on 34 felony charges related to cash payments made before the 2016 election. It is now seeking to have the case dismissed based on the US Supreme Court’s immunity ruling. The judge has permanently postponed the sentence against Trump until the matter is resolved.
“That’s where we would see the Supreme Court’s decision tested immediately,” said Norm Eisen, a senior fellow at the Brookings Institution who served as special counsel to the House Judiciary during Trump’s first impeachment trial.
However, Eisen said “we’re not going to get all the answers in the state’s case because it’s a fairly tangential immunity claim.”
Eisen noted that prosecutions of other people involved in efforts to overturn the 2020 election could keep at least some of Trump’s past behavior in the spotlight.
“(Trump) may be immune, he may be in office, but there have been lawsuits against fake elected officials all over the country,” Eisen said. “And those cases are going to go to trial and they’re going to shed light on Trump’s involvement even though he’s not charged in those cases. That’s another place where there’s certainly going to be some sort of public narrative about what happened, his role in it, and whether he should be retained. accounts”.
