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Unanswered Questions: The Legal Limits of Presidential Criminality in the Wake of Trump Investigations

In Citizen
November 29, 2024

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The conclusion of legal cases involving Trump has left unanswered questions about the extent of a president’s immunity from criminal charges, as well as the ability of outside special counsels to investigate misconduct at the highest levels of government. Trump is expected to return to office with these uncertainties still looming.

Written by Charlie Savage

Charlie Savage writes about the authority of the president and the legal strategies they use

The conclusion of the two federal criminal cases involving President-elect Donald J. Trump raised significant and unresolved issues regarding limits on criminal actions by presidents. These questions include the extent of presidential immunity and whether the Justice Department can still appoint independent special counsels to investigate misconduct at a high level.

The two legal cases against Mr. Trump, one for his efforts to overturn the 2020 election and the other for withholding classified government documents and obstructing retrieval efforts, were cut short because he won the 2024 election before they could be fully resolved.

Jack Smith, the special counsel handling the cases against Mr. Trump, requested courts to dismiss the cases on Monday. He referenced the Justice Department’s belief that the Constitution provides temporary immunity to sitting presidents to prevent any distractions from their official responsibilities.

As a result, it seems unlikely that Mr. Trump will face any criminal consequences for his actions. While there is a possibility of charges being refiled after he leaves office, it is probable that the statute of limitations will have expired by then. Additionally, it is uncertain whether two constitutional questions raised by the cases will be resolved as Mr. Trump assumes office.

The Supreme Court ruled this summer that former presidents have a certain level of protection from prosecution for official acts they took while in office. This protection is broad but not completely defined.

Another issue is whether the Justice Department can maintain impartiality when a president is accused of crimes by appointing an external prosecutor to oversee an investigation into the allegations.

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