Jack Smith and Merrick Garland must reconsider how they wish to proceed with the DOJ’s prosecution in the District of Columbia against former President Trump.
Monday’s Trump v. United States opinion made clear that a president or former president 'may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.' Chief Justice John Robert’s majority opinion also said that 'the President enjoys no immunity for unofficial acts, and not everything the President does is official.
It is conceivable that the DOJ could argue that 'Trump’s interactions with state officials, private parties, and the general public' regarding the 2020 election results were unofficial acts subject to continued prosecution, but it would require extensive fact-finding and briefing at the district court, such that an actual trial likely would be at least two years away.
Presidential immunity from prosecution or a rebuttable presumption of immunity does not mean that the Congress or the American people cannot hold presidents accountable. For example, the Constitution clearly lays out the House impeachment and Senate trial removal procedures, and one hopes that legislators are wise enough to use them sparingly and only after following proper procedures and developing an airtight case.
The Biden administration was wrong to break norms and prosecute a former president, if only because doing so impinged on the 'exclusive and preclusive' powers of future presidents. It also began what could have been a vicious cycle of tit-for-tat prosecutions from administration to administration, which would have been disastrous for the rule of law.
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