By Charlie Savage
The conclusion of the two federal criminal proceedings against President-elect Donald Trump on Monday left significant, unresolved inquiries regarding the limitations on presidential criminal behavior, ranging from the parameters of presidential immunity to the capacity of the Justice Department to appoint external special counsels for high-level misconduct investigations.
Both legal actions against Trump — concerning his efforts to overturn the 2020 election and his subsequent retention of classified government documents along with hindering attempts to recover them — were effectively halted by his victory in the 2024 election before conclusive judgments could be made.
Jack Smith, the special counsel responsible for both cases, on Monday requested that courts dismiss them. The prosecutor referenced the long-held position of the Justice Department asserting that the Constitution implicitly provides temporary immunity to sitting presidents to prevent any prosecutions from interfering with their official responsibilities.
As a consequence, it appears that Trump is likely to evade any criminal repercussions for his actions. (Smith indicated a theoretical possibility of re-filing charges after Trump’s presidency ends, although the statute of limitations will likely have expired by then.) It also implies that two pivotal constitutional queries raised by these cases are likely to remain unresolved as Trump assumes office.
One question pertains to the level of protection from prosecution afforded to former presidents due to the Supreme Court’s ruling from this summer, which established a broad but not entirely defined immunity for official actions taken during their presidency.
The second inquiry is whether, when a president is suspected of criminal activity, the Justice Department can mitigate conflicts of interest by appointing an independent prosecutor to spearhead a semi-autonomous investigation.
The ambiguity surrounding these questions could have far-reaching effects on the future of American democracy beyond whatever limitations Trump may — or may not — experience throughout his second term.
The issue of presidential immunity was established by the six justices on the Supreme Court appointed by Republicans earlier this year. They concluded, in a ruling articulated by Chief Justice John Roberts, that the Constitution implicitly confers a presumption of immunity from prosecution for official actions undertaken by presidents.
The ruling suggested that this presumption could be overturned under certain circumstances.
Roberts, however, wrote his decision in a manner that left numerous questions unresolved — potentially because it was anticipated that the issue would resurface before the Supreme Court at least once more for clarification before Trump might go to trial, at least if he were not victorious in the election.
“There were various interpretations of the Supreme Court’s immunity ruling, and now, for the time being, we will not receive any further clarifications from the Supreme Court,” remarked Jack Goldsmith, a Harvard Law School professor and former senior Justice Department official during the Bush administration.
Aside from indicating that a president’s dealings with the Justice Department are classified as official conduct that enjoys absolute immunity — which means a president could potentially leverage their oversight of federal law enforcement to engage in criminal acts without the risk of anything beyond impeachment — Roberts left much in question.
For instance, he pointed out without a resolution the possibility that Trump’s pressure on his vice president, Mike Pence, to misuse his position in presiding over the joint session of Congress that certified the 2020 election could fall under an exception recognized by the Supreme Court for official conduct that would not be shielded from prosecution.
He also did not conclusively determine whether most of the other actions for which Trump faced charges — such as disseminating falsehoods about voter fraud and plotting to enlist fraudulent pro-Trump electors from states where Trump lost — could be categorized as actions typical of an unofficial candidate or as official behavior of a president mandated to ensure the faithful execution of election laws.
Smith presented to trial judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia a comprehensive collection of evidence he intended to utilize at trial and arguments for why the Supreme Court’s immunity ruling should not apply to it. The dispute was poised to return to the Supreme Court for a clarifying decision that could have provided a framework for future disagreements concerning presidential misconduct.
Another critical question that now seems destined to remain unanswered is whether attorneys general, when attempting to sidestep conflicts of interest in politically charged investigations, possess the authority to appoint an outsider — rather than a sitting U.S. attorney — to lead a probe as a special counsel with a degree of operational independence.
The Supreme Court had previously endorsed such an arrangement as constitutional during the Watergate scandal involving President Richard M. Nixon. However, in a concurring opinion in the immunity case, Justice Clarence Thomas suggested that such an arrangement might be illegal. The Trump-appointed trial judge in the documents case, Aileen M. Cannon, subsequently ruled that Smith had been improperly appointed and dismissed the indictment on those grounds.
While Smith had previously served as a public corruption prosecutor within the Justice Department, he was engaged in international war crimes cases at The Hague, Netherlands, when Attorney General Merrick Garland appointed him as special counsel for the Trump investigations.
The legal validity of Cannon’s ruling drew skepticism, partly because she seemed dismissive of precedents established by higher courts and partly due to her documented bias in favor of Trump, a stance that was later overturned by an appeals court. Smith sought to appeal her ruling to the 11th U.S. Circuit Court of Appeals in Atlanta.
On Monday, Smith informed that court he was withdrawing his appeal as it pertained to Trump. However, he did not abandon the appeal concerning the other defendants in the case — two of Trump’s associates accused of aiding him in the document-related conspiracy — but it is widely anticipated that Trump will pardon them upon his inauguration, effectively concluding the rest of the case.
It seems unlikely the appeals court will render a decision regarding the special counsel appointment issue before that time — and it is almost certain that the Supreme Court will not have an opportunity to deliver a definitive ruling on the subject before that deadline passes.
