Presidential immunity has clear limits, the special counsel filing says, and Trump needs to be tried for his efforts to overturn the 2020 election

A brand new submission by Special Counsel Jack Smith within the Lawsuit he filed against Donald Trump for his alleged attempts to overturn the 2020 presidential election provides more detailed information and supports Smith's argument that Trump committed illegal acts as president to overturn his 2020 election loss.

These acts, Smith argues, were adopted by Trump as a candidate for re-election and are due to this fact not covered by a 2024 Supreme Court opinion on the case, which said that President Official acts should not subject to criminal prosecution once they exercise their basic constitutional powers.

But are the actions that fall outside a president's core constitutional authority clearly defined? Smith's filing isn’t only relevant to his election subversion case against Trump in 2020, but can even likely have implications for the following and future President of the United States. The filing and the inevitable litigation that may ensue will help make clear exactly how far presidential immunity extends.

While disputes surrounding the Trump case will happen in court, Congress has and can proceed to have an underappreciated responsibility in defining and limiting presidential power. As a constitutional lawyer Anyone who studies government institutions and the way they work believes Congress has one unique role in shaping the balance of power between the three branches of presidency at this moment in history.

The Trump case and the precedent upon which it relies Recognize that the president's most constitutionally suspect actions are people who exceed the outer limits of 1 branch's authority or undermine the powers of one other. For example, in considering the certification of the outcomes of a presidential election, the Court noted that Congress has enacted extensive laws and that the President plays no direct constitutional or statutory role in the method.

By acting inside its own constitutional legislative and regulatory powers, Congress can beat back against presidential power.

“Twilight Zone”

In August 2023, a federal grand jury indicted Trump on 4 counts of conduct related to the conspiracy to overturn the November 2020 presidential election.

Trump denied the fees and claimed that the president enjoyed absolute immunity from prosecution for official actions taken while in office. The case ended up within the Supreme Court, and the court issued its now famous immunity ruling, saying: “The court comes to this conclusion that the President is absolutely immune from criminal prosecution for conduct within his exclusive constitutional authority.”

But not the entire president's actions fall under these core powers. The court distinguished between three types of presidential actions.

Some measures clearly fall throughout the exclusive constitutional powers of the President. These duties include serving as commander in chief, recognizing foreign governments, and signing or vetoing bills passed by Congress. Presidential actions under this authority are subject to completely no criminal prosecution.

At the opposite end of the spectrum, some actions are clearly outside the president's constitutional authority. For example, if a president files for re-election or sets up a campaign committeeThe President acts as a candidate and never because the occupant of the office of President. There are no immunity for these actions.

But sometimes the president acts in ways in which the Supreme Court calls “Zone of Twilight“, where the President and Congress share authority or in areas that lie throughout the external boundaries of the presidency.

For example, though this responsibility isn’t explicitly stated within the Constitution, when the President addresses the nation from the Oval Office to update the American people on vital events, he’s acting in his official capability.

In these “zone of twilight” cases, prosecution cannot impede the president’s ability to do his job. That means the president enjoys immunity unless the prosecutor can prove that the prosecution won’t upset the balance of power between the three branches of presidency.

Why immunity?

The fundamental reason for granting immunity to public officials, including prosecutors and judges, is that this enable them to serve the general public without risking criminal punishment for doing what they imagine best serves the country. Possible criminal liability increases the chance that public officials would make decisions based on threats from political opponents reasonably than exercising the independent judgment needed for effective public service.

Fear of political threats is a specific concern for the president. As the court explained within the Trump case without immunity, “The president would be deterred if he took the bold and thoughtless action'” required by the office.

Unlike other federal offices within the U.S. constitutional system, the presidency consists of 1 entire industry of presidency, often known as the manager branch. Previous Supreme Court decisions have recognized the duties of the president: “of incomparable weight and breadth” by the president doing that most sensitive and far-reaching Decisions entrusted to an elected official.

The president is clothed with the manager power of the United States and serves as Leader of the nation in politics and foreign and domestic policy. And it's the president's job much more complex than the drafters of the Constitution could have imagined within the 18th century.

The modern executive branch includes Hundreds of agencies and thousands and thousands of federal employees who help the President implement the law. As a result, the President more political and policy advisors than anyone else in government. The promise of immunity helps these advisors provides the president differentiated information on politics and politics.

And while expanding executive power may appear to be a contemporary phenomenon, concerns about expanding executive power are nothing latest. In fact, firstly of President George Washington's second term Benjamin Franklin “was speechless with astonishment at the sentiments…that the executive branch alone should have the right to decide what should be kept secret and what should be made public.”

This raises the query: How does Congress write laws and oversee their implementation in a constitutionally, legally, and historically established world during which the president wields such power?

What are the bounds?

While the phrase “separation of powers” ​​has long been used to explain the U.S. system of presidency, U.S. legal history shows that the American constitutional system is certainly one of them shared, not separate, powers.

Presidential immunity is entirely related to this. So, in line with the Supreme Court's 2024 ruling, it isn’t as much as the president to come to a decision which of his actions on this “zone of twilight” receive immunity and which don’t.

That's a matter for the courts and Congress.

Here's how it really works: The extent of the president's immunity will depend on the selections of the federal judiciary what matters official and unofficial actions. First formulated by the Supreme Court in 1803It is the job of the judiciary to “say what the law is.”

But Congress writes the law. And Congress oversees how the president implements it.

Congress has investigated the conduct of not less than 15 current or former presidents. For example, congressional investigations into the Watergate scandal uncovered crucial evidence of President Nixon's illegal actions and ultimately led to his resignation.

In doing so, Congress relied by itself constitutional authority process-like instruments to make clear presidential actions that fall outside of the president's official duties or within the “twilight zone.”

Not only did these investigations inform the general public concerning the president's actions, in addition they helped Congress maintain its position in America's divided-powers constitutional system.

In a legal world where presidential immunity is defined partially based on the balance of power between the three branches of presidency, this can’t be a nasty thing.