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Can Trump be prosecuted? Supreme Court will take up precedent-setting case to define the limits of presidential immunity

Claire Wofford, College of Charleston, The Conversation on

Published in News & Features

The U.S. Supreme Court announced on Feb. 28, 2024, that it will consider the momentous issue of whether Donald Trump is immune from criminal prosecution, delaying the federal prosecution of the former president for his alleged efforts to subvert the 2020 election.

A lower court, the U.S. Court of Appeals for the District of Columbia Circuit, ruled on Feb. 6 that Trump could be prosecuted, rejecting his claims of immunity. Trump appealed that ruling to the Supreme Court.

Claire Wofford, a political scientist who teaches constitutional law and American government at the College of Charleston, analyzed that previous ruling for The Conversation. Senior politics and democracy editor Naomi Schalit asked Wofford to answer questions here about the Supreme Court’s decision to consider the Trump immunity case.

What question did the Supreme Court say it will address by taking this case?

In agreeing to hear this case, the Supreme Court justices said they will decide whether or not Trump is immune from criminal prosecution by Special Counsel Jack Smith for his alleged attempt to overturn the results of the 2020 presidential election. Until that question is answered, Smith’s prosecution – which was already on hold during the lower court deliberations – cannot move forward.

Is there something that’s not obvious about how the Supreme Court stated this question?


The precise phrasing of the question the Supreme Court said it will answer is interesting: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” The court stated it will answer not only whether Trump might have immunity but also “to what extent” that immunity exists.

This raises the possibility that rather than simply answer if Trump does or does not have immunity, the court may be looking to extend immunity to some of Trump’s actions and not others. It could also indicate that at least some justices believe future presidents should enjoy some immunity from criminal prosecutions for actions they took while in office, but that this should not extend to what it is alleged Trump did in this Jan. 6 case.

Making this kind of distinction – which the D.C. Circuit ruling did not – could explain why at least four justices on the Supreme Court agreed to hear the case. Rather than simply affirm – or reverse – the lower court, the justices may be interested in making a more nuanced ruling than the lower courts have done.

How will this affect the timing of the Jan. 6 prosecution?


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