Must-Read Charlie Savage: “End of Trump Cases Leaves Limits on Presidential Criminality Unclear”

Charlie in the NYT:

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.

The uncertainty that will linger over those questions could have implications for the future of American democracy beyond whatever constraints Mr. Trump will — or will not — feel over the course of his second term….

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 — Chief Justice Roberts left much ambiguous.

For example, he raised without resolution the possibility that Mr. 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 Mr. Trump was charged — like spreading lies about voter fraud and conspiring to recruit fake pro-Trump electors from states that Mr. 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.

The ruling was also silent about a key issue for any president who might abuse his official powers: whether subordinates who take an illegal action in response to presidential direction are also immune or would themselves risk prosecution for obeying their boss….

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