The end of the two federal criminal cases against President-elect Trump on Monday left 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 counsels to investigate high-level wrongdoing.
Both cases against . Trump — for his attempt to overturn the 2020 election and his 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 resolved.
Jack Smith, the special counsel who brought both cases, 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.
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The result means that two open constitutional questions the cases have raised appear likely to go without definitive answers as Trump takes office, reports the New York Times.
One is the extent of the protection from prosecution offered to former presidents by the Supreme Court’s ruling 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.
The uncertainty that will linger over those questions could have implications for the future of democracy beyond whatever constraints Trump may feel over the course of his second term.
Special counsel Jack Smith took a narrow view of the Supreme Court’s immunity ruling, arguing that most of Trump’s actions cited in the original indictment could be subject to prosecution. Trump’s legal team countered that nearly everything in the indictment should be interpreted as official conduct and deemed immune.