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‘Above the law’ in some cases: Supreme Court gives Trump − and future presidents − a special exception that will delay his prosecution

Claire B. Wofford, College of Charleston, The Conversation on

Published in News & Features

The United States Supreme Court has handed former president Donald Trump what may be the most favorable legal decision he could have reasonably hoped for in his fight against federal prosecution for his attempts to reverse the 2020 election outcome.

Justices split along ideological lines in a 6-3 decision issued on July 1, 2024, in which the conservative-dominated court declared that a former president has “some immunity for criminal prosecution for official acts during his tenure in office.”

The majority’s use of the word “some,” however, obscures the extent to which its opinion ensures that it will be much more difficult for special counsel Jack Smith to prosecute Trump for actions taken around the 2020 election, much less win that prosecution.

And depending on the extent to which future presidents take advantage of the breadth of legal protection the court is granting, the ruling may also produce fundamental shifts in the nation’s system of checks and balances among the three branches of government and the ability of the legal system to ensure the president complies with the law.

At issue in the case was whether the former president could be prosecuted for actions he took related to the 2020 election. Smith originally brought criminal charges against Trump in August 2023, alleging that Trump violated four criminal statutes, including conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding and conspiracy against voters’ rights.

Trump argued in an appeal that he could not be criminally prosecuted because he enjoyed absolute immunity for any “official acts” taken while in office.

 

Government prosecutors countered that the president was not “above the law” and that, given existing safeguards in the criminal justice system designed to mitigate politically motivated prosecutions, Trump should face legal accountability.

U.S. District Court Judge Tanya Chutkan earlier agreed with the government and dismissed Trump’s appeal in December 2023. The U.S. Court of Appeals for the District of Columbia Circuit agreed with her decision, writing in February 2024 that “President Trump has become citizen Trump” and therefore enjoyed no special protection from criminal prosecution.

After initially refusing to hear the case, the Supreme Court agreed to take it on Feb. 28, 2024, and heard oral arguments on April 25, 2024.

The ruling comes after what seemed to many an excessive, even purposeful delay.

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