The end of two federal criminal cases against president-elect Donald Trump on Monday left momentous, unsettled questions about constraints on criminal wrongdoing by presidents, from the scope of presidential immunity to whether the US justice department may continue to appoint outside special counsels to investigate high-level wrongdoing.
Both cases against Trump – for his attempt to overturn the 2020 election and his later hoarding of classified government documents and obstruction of efforts to retrieve them – were short-circuited by the fact that he won the 2024 election before they could be definitively resolved.
Jack Smith, the special counsel who brought both cases against Trump, asked courts on Monday to shut them down. The prosecutor cited the justice department’s long-standing view that the constitution implicitly grants temporary immunity to sitting presidents lest any prosecution distract them from their official duties.
The result is not just that Trump appears set to escape any criminal accountability for his actions. (Smith left the door open to, in theory, refiling the charges after Trump leaves office, but the statute of limitations is likely to have run by then.) It also means that two open constitutional questions the cases have raised appear likely to go without definitive answers as Trump takes office.
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One is the extent of the protection from prosecution offered to former presidents by the supreme court’s ruling this summer establishing that they have a type of broad but not fully defined immunity for official acts taken while in office.
The other is whether, when a president is suspected of committing crimes, the justice department can avoid conflicts of interest by bringing in an outside prosecutor to lead a semi-independent investigation into the matter.
The uncertainty that will linger over those questions could have implications for the future of American democracy beyond whatever constraints Trump will – or will not – feel over the course of his second term.
The issue of presidential immunity was created by the six Republican-appointed justices on the supreme court earlier this year. They ruled, in an opinion written by chief justice John Roberts, that the constitution implicitly grants presidents presumptive immunity from prosecution over their official actions.
The ruling said that presumption could in some circumstances be overcome.
Roberts, however, drafted his ruling in a way that left many questions unanswered – perhaps in part because there was an expectation that the matter would come back before the supreme court at least once more to be refined before Trump could go to trial, at least if he lost the election.
“There were a number of different ways of interpreting the supreme court’s immunity decision, and now, at least for a while, we are not going to get any further answers from the supreme court,” said Jack Goldsmith, a Harvard Law School professor and former senior justice department official in the Bush administration.
Beyond saying that a president’s interactions with the justice department were a type of official conduct that was absolutely immune – meaning a president can now use his supervisory control of the nation’s federal law enforcement system to commit crimes with impunity outside of the potential for impeachment – Roberts left much ambiguous.
For example, he raised without resolution the possibility that Trump’s pressuring of his vice-president Mike Pence to abuse his role presiding over the joint session of Congress that certified the 2020 election might fall into an exception the supreme court created for official conduct that would not be immune from prosecution.
He also did not definitively say whether most of the other actions for which Trump was charged – such as spreading lies about voter fraud and conspiring to recruit fake pro-Trump electors from states that Trump had lost – counted as the unofficial conduct of a candidate for office, or as the official conduct of a president whose job includes taking care that election laws are faithfully executed.
Smith submitted to the trial judge, Tanya S Chutkan of the US district court for the district of Columbia, a lengthy compendium of the evidence he wanted to use at trial and arguments for why the supreme court’s immunity ruling did not cover it. The dispute had been on a path to return to the supreme court for a clarifying ruling that would have provided a guide for future disputes over presidential misconduct.
The other major question that now appears likely to end without a definitive answer is whether attorneys general, when seeking to avoid conflicts of interest in politically sensitive investigations, have the authority to bring in an outsider – rather than a sitting US attorney – to lead an inquiry as a special counsel with a degree of day-to-day autonomy.
The supreme court had blessed that arrangement as constitutional during president Richard Nixon’s Watergate scandal. But in a concurrence in the immunity case justice Clarence Thomas raised the possibility that such an arrangement might be illegal. The Trump-appointed trial judge in the documents case, Aileen Cannon, then declared that Smith was unlawfully appointed and dismissed the indictment on those grounds.
While Smith had previously been a justice department public corruption prosecutor, he was working on international war crimes cases at The Hague when attorney general Merrick Garland appointed him as special counsel for the Trump inquiries.
The legal legitimacy of Cannon’s ruling attracted scepticism, in part because she was dismissive of precedent by higher courts and in part because she had a history of showing Trump unusual favour, only to be overruled by an appeals court. Smith appealed her ruling to the 11th US Circuit Court of Appeals, in Atlanta.
Smith told that court on Monday that he was dropping that appeal as it applied to Trump. He did not drop the appeal concerning the other defendants in that case – two employees of Trump’s who are accused of helping him in the documents conspiracy – but Trump is widely expected to pardon them upon his inauguration, killing off the remainder of the case.
It appears unlikely that the appeals court will rule on the special counsel appointment issue before then – and all but certain that the supreme court will have no opportunity to issue a definitive ruling on the matter before that clock runs out.
– This article originally appeared in The New York Times.
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