Dr. Jennifer L. Selin
Associate Professor at the Arizona State University Sandra Day O’Connor College of Law. Her scholarship explores legal institutions and how they work. Her research has been published in political science, public administration, and law journals and has been utilized by the Obama, Trump and Biden Administrations, Congress, the Supreme Court, and the media.
Email: jennifer.selin@asu.edu
U.S. Election 2024
1. Trump’s imagined reality is America’s new reality (Prof Sarah Oates)
2. Trump’s threat to American democracy (Prof Pippa Norris)
3. Why does Donald Trump tell so many lies? (Prof Geoff Beattie)
4. Strategic (in)civility in the campaign and beyond (Dr Emily Sydnor)
5. Can America’s democratic institutions hold? (Prof Rita Kirk)
6. How broad is presidential immunity in the United States? (Dr Jennifer L. Selin)
7. Election fraud myths require activation: Evidence from a natural experiment (Dr David E. Silva)
8. What ever happened to baby Q? (Harrison J. LeJeune)
9. We’re all playing Elon Musk’s game now (Dr Adrienne L. Massanari)
10. Peak woke? The end of identity politics? (Prof Timothy J. Lynch)
11. Teaching the 2024 election (Dr Whitney Phillips)
Congress has investigated one third of the presidents of the United States based on misconduct in office. Most of these investigations have resulted in or been accompanied by litigation in U.S. courts.
For example, in 1922, President Warren G. Harding’s administration secretly provided $3 billion (in today’s dollars) of no-bid contracts to political allies. As a result of the scandal, Harding’s Secretary of Interior became the first former Cabinet official in U.S. history to be sentenced to prison because of misconduct in office.
But few presidents themselves have been prosecuted criminally. Until President Donald J. Trump and his allies were indicted in federal and state courts on charges including misuse of classified documents and alleged interference in the 2016 and 2020 presidential elections.
In 2024, President Trump became the first former president to be criminally convicted. This conviction resulted from Trump falsifying business records to conceal an illegal scheme to influence the 2016 presidential election.
Trump’s election as the 47th president makes him the first convicted felon to serve as president. The charges still pending against him raise questions about the extent to which the president and his advisors are shielded from prosecution while in office.
Immunity under the U.S. constitution
Immunity for public officials in the United States – including prosecutors, judges, and presidents – originates from British common law. For example, in 1234, King Henry III declared that the king has no superior in the kingdom and therefore cannot be legally summoned or commanded. This conception continued for the next several centuries and influenced how the Framers of the U.S. Constitution viewed executive power.
Today, the U.S. Supreme Court has extended immunity from prosecution beyond the head of state. The primary justification for such immunity is to enable government officials to serve the public without worrying about being punished criminally for doing what they think best serves the country. According to the Court, without immunity, there is a risk that officials will act in fear of political opponents’ threats and refrain from making informed and independent decisions in office.
However, immunity is grounded in the office (not the person) and therefore only extends to official conduct.
But what happens when a president runs for re-election or pushes the boundaries of the office? When do his, or his advisors’ actions constitute official conduct and when are they considered unofficial decisions made by politicians?
Trump v. United States
This was the issue the U.S. Supreme Court wrestled with this summer. In response to an indictment in federal court alleging that Trump conspired to overturn the 2020 presidential election, Trump moved to dismiss the charges on the idea that his conduct involved his official duties as president and were therefore immune from prosecution.
In its landmark ruling, the Supreme Court somewhat agreed with Trump but specified three types of presidential action.
First, the Court affirmed that the president has absolute immunity for official acts. Without such immunity, according to the Court, “the President would be chilled from taking the ‘bold and unhesitating action’” required of the office. These responsibilities include serving as commander in chief, recognizing foreign governments, and signing or vetoing the bills Congress passes.
On the flip side, actions taken by presidents in their unofficial capacity are not immune from criminal or civil litigation. Unofficial actions include when a president files for reelection or sets up a campaign committee.
Yet sometimes the president acts in what the Court has called a “zone of twilight,” where the president uses the outer perimeters of the presidential office. For example, even though the Constitution does not explicitly detail this responsibility, the president acts in his official capacity when he addresses the nation from the Oval Office to update the American people on important events. In these instances, the president has immunity unless a prosecutor can show that litigation will not upset the balance of power in the U.S. government.
Looking forward
In response to the Court’s decision and prior to Trump’s re-election as the 47th president, Jack Smith – the special counsel in charge of the 2020 federal election interference case – revised Trump’s indictment to highlight conduct that fell outside of official conduct and would not upset the balance of governmental power.
Yet the election changed the legal landscape.
Specifically, the U.S. has a longstanding policy against prosecuting sitting presidents. The president oversees hundreds of agencies and millions of federal employees, who provide the president with nuanced information on policy and politics. Because the president’s duties are “of unrivaled gravity and breadth,” the person in office must make the most sensitive and far reaching decisions entrusted to any elected official in America.
As a result, three days after the election, Jack Smith filed a motion to suspend the case and the federal judge overseeing it granted that motion.
But questions remain about the extent to which immunity will cover future Trump actions.