The Trump Presidency

William Roberts, IBA US Correspondent

Following the election of Donald Trump as president for a second term, criminal cases against him have been dismissed. Global Insight assesses the implications for rule of law in the US.

Donald Trump no longer faces federal criminal charges in the US after winning the election to have a second four-year term as president.

Special Counsel Jack Smith has dismissed the charges against Trump for allegedly attempting to fraudulently overturn the 2020 presidential election and illegally retaining classified documents at his Mar-a-Lago estate. Longstanding Department of Justice (DoJ) policy prevents indictment and prosecution of a sitting US president. Trump pleaded not guilty in both cases.

Sentencing is delayed, meanwhile, in the New York state criminal case in which Trump was convicted of falsifying business records to cover hush money payments. In early December, Trump’s lawyers asked the judge to vacate the guilty verdict and dismiss the case, given his election victory. In Georgia, the case brought by Fulton County District Attorney Fani Willis in respect of Trump’s attempt to overturn the 2020 election is on hold. Trump denies wrongdoing in that case.

Trump’s election victory and the federal dismissals, combined with the US Supreme Court’s immunity ruling in July, mean Trump re-enters the presidency free from the prosecutions he faced as a candidate. ‘One way to read this chapter is that America has decided that having people get to choose who they want in office is more important than having accountable legal processes’, says Matt Kaiser, Senior Vice Chair of the IBA Criminal Law Committee and a partner at law firm Kaiser in Washington, DC.

‘The balance between the rule of law and our commitment to democracy is complicated’, says Kaiser, who is representing plaintiffs in an ongoing civil suit against Trump relating to the 6 January 2021 attack by rioters on the US Capitol. ‘Our constitutional structure requires that we can’t indict a sitting president as that would be inefficient, bad for the country.’

There will be no wall between the political arm of the White House and the functioning of the Justice Department

Gene Rossi 
Former US Prosecutor 

While US governing norms are meant to shield the DoJ from political pressures, the reality is that the President holds ultimate authority over the department. Trump has promised to dismiss Smith as soon as he takes office on 20 January.

Smith, however, plans to leave government in the coming weeks. Before stepping down, he’s expected to submit a report to Attorney General Merrick Garland detailing the prosecutions of Trump and the rationale behind his decisions. Garland, who is also set to leave office before Trump’s inauguration, will have the discretion to make the report public.

‘There won’t be any liability for President Trump, however, there may be accountability in the arena of public opinion’, says Gene Rossi, a former US prosecutor and now a shareholder at law firm Carlton Fields in Washington, DC. ‘Smith’s report will have a more fulsome and expansive presentation of the evidence against President Trump.’

The legal reasoning driving the DoJ’s dismissal of charges against Trump dates to the presidency of Richard Nixon and the Watergate scandal in the early 1970s. As Nixon and his associates were investigated over the Watergate break-in and cover-up, the DoJ debated whether a sitting president could be indicted and prosecuted.

In 1973, the department’s Office of Legal Counsel (OLC) issued a memorandum concluding that the president’s unique role in the US Constitution as head of the executive branch shielded him from prosecution. Criminal proceedings, the OLC argued, would severely impair the president’s ability to fulfil his constitutional responsibilities, thus violating the doctrine of separation of powers.

The House of Representatives eventually moved to impeach Nixon and he resigned before the Senate acted to remove him from office. His successor, Gerald Ford, issued him with a blanket pardon. ‘When the president does it, that means that it is not illegal’, Nixon later infamously asserted in a 1977 interview with British journalist David Frost.

The issue resurfaced during the presidency of Bill Clinton, as he faced impeachment for perjury in the Monica Lewinsky scandal. A second OLC memo reinforced the 1973 ruling, preventing Independent Counsel Kenneth Starr from indicting Clinton. It was this same DoJ policy that prevented Special Counsel Robert Mueller in 2019 from potentially bringing obstruction of justice charges against Trump in the Russia investigation.

It’s conceivable that Smith’s prosecutions of Trump might have succeeded if he had been appointed by Garland earlier in 2021. Trump’s legal strategy of delaying proceedings proved effective and the Supreme Court’s ruling that he enjoyed broad immunity for official acts further weakened Smith’s efforts.

‘The accountability vacuum is undeniable. Beyond the Supreme Court’s restrictions, the Justice Department’s policy is that sitting presidents can’t be prosecuted for crimes, whether or not they’re guilty’, says Tom Devine, Legal Director for the Government Accountability Project, a Washington, DC-based watchdog group.

‘A president can be acting outside his duties and engaging in criminal conspiracies or even violent crimes, and is immune from prosecution while he’s in office’, Devine says. ‘President Trump has absolute, unqualified immunity while he’s sitting as president. The most that could happen is, after the next election, a new government could decide to press charges.’

By then, however, the statute of limitations on many of the now-dismissed allegations will probably have expired.

Up next, a new test of US political norms and the rule of law looms if Trump pursues his earlier threats to investigate and prosecute Smith and members of the Special Counsel’s office. Trump is reportedly also preparing to order the DoJ to investigate his baseless allegations of election fraud in the 2020 presidential race, according to a pair of Trump transition team officials.

Trump has nominated Florida lawyer Pam Bondi to serve as Attorney General. Bondi defended Trump in his first impeachment and questioned the accuracy of the 2020 election results. She still faces confirmation hearings in the Senate.

‘That Attorney General is probably going to have a red phone on their desk that says, “Call from the White House”, and it’s probably going to be ringing five times an hour’, says Rossi. ‘There will be no wall between the political arm of the White House and the functioning of the Justice Department.’

William Roberts is a US-based freelance journalist and can be contacted at wroberts3@me.com