End of Trump Cases Leaves Limits on Presidential Criminality Unclear
The New York Times
Donald J. Trump is set to regain office without clarity on the scope of presidential immunity and with a lingering cloud over whether outside special counsels can investigate high-level wrongdoing.
The end of the two federal criminal cases against President-elect Donald J. Trump on Monday left momentous, unsettled questions about constraints on criminal wrongdoing by presidents, from the scope of presidential immunity to whether the Justice Department may continue to appoint outside special counsels to investigate high-level wrongdoing.
Both cases against Mr. 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 Mr. Trump, asked courts on Monday to shut them down. The prosecutor cited the Justice Department’s longstanding 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 Mr. Trump appears set to escape any criminal accountability for his actions. (Mr. Smith left the door open to, in theory, refiling the charges after Mr. 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 Mr. Trump takes office.
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.
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