President Trump’s repeated defiance of the law and the Constitution raises a question: Will he ever face criminal charges — or any kind of real accountability — for what he has done?
Did the Supreme Court let him off the hook, especially with its decision on presidential immunity in Trump v. United States in 2024?
Can the president pardon himself?
If no congressional or federal case can be made, can state prosecutors bring this renegade to justice?
Is there a kind of perverse legitimacy to Trump’s claim, made last year on both X and Truth Social, that “He who saves his Country does not violate any Law”?
With the prospect that next Tuesday’s elections will deal a blow, perhaps a serious blow, to Trump and the MAGA movement — potentially provoking him to go still further to extremes — I sought out opinions from legal scholars.
I started with Michael Gerhardt, a law professor at the University of North Carolina-Chapel Hill widely recognized for his expertise on these issues. He replied by email to a series of questions.
His answers reflect the outrage in much of the legal community over the blatant illegality of Trump’s actions and the underlying, though often not directly expressed, fear that he will go scot-free.
Has Trump committed any crimes that could arguably be classified as unofficial acts and therefore subject to prosecution once he leaves office?
“Yes,” Gerhardt replied:
Evidence shows that Trump could be prosecuted for several crimes that could be reasonably classified as unofficial acts, including payments he received in exchange for pardons or access to the administration; enriching himself and/or his family from self-dealing; and attempts to interfere with or undermine the electoral process; obstruction of justice. There are many other acts for which he (and others) could face legal sanction, such as insider trading that has benefited him personally.
Has he committed crimes through his official acts for which the presumption of immunity might be overcome?
Trump has committed official acts for which the presumption of immunity could be overcome, including but not limited to issuing pardons to business associates and others as recompense for their loyalty.
How much does the immunity granted by the Supreme Court in Trump v. United States constrain the ability of prosecutors to get and present the evidence they need?
The expansive immunity that the Supreme Court has vested in the presidency makes prosecution difficult because it incentivizes presidents to claim they were exercising their official powers when engaging in criminal or other misconduct.
How much can Trump protect himself through a self-pardon before he leaves office?
Trump has floated the idea more than once that he could pardon himself for federal crimes. He could even use President Biden’s pardon of his son Hunter as a model for protecting himself and/or allies or family from federal prosecutions. There are compelling and persuasive arguments that a president does not have the authority to pardon himself and that any such pardon could be grounds for impeachment.
Looking at these issues from a broader overview, Gerhardt wrote:
Trump has abused power and engaged in misconduct in at least three general ways: First, he has engaged in self-dealing that has allowed him to add billions to his net worth in the first two years of his second term. Second, he has abused his powers to punish his political enemies, such as pushing for the prosecutions of former F.B.I. director James Comey and former chair of the Federal Reserve Jerome Powell.
Last but not least, he has told thousands of lies to justify inappropriate actions, such as ordering the National Guard into American cities, murdering innocent people on the high seas, and plans to use the military to intimidate voters. He has written the book on the many ways in which presidents can commit impeachable offenses.
Leah Litman, a law professor at the University of Michigan, pointed to a characteristic aspect of Trump’s corruption: He has initiated extensive maneuvers to personally profit as a private citizen while wielding the threat of his public power.
“Donald Trump,” Litman said,
has, to a greater extent than any president before him, traded on acting in his “individual” capacity while ostensibly gesturing to his “official” capacity in order to coerce entities to do his bidding.
For example, he was able to obtain favorable settlements in some of his litigation against media companies that he initiated in his private capacity. Many of the settlements also paid money to him in his private capacity. Those are unofficial actions. Yet there’s also no question that an animating force behind the settlements were his official powers.
So is that an official versus an unofficial act? It’s unclear — and that’s part of the issue with the immunity opinion — it’s failure to recognize the obvious fact that corruptly exercising official powers converts them from public/official/permissible powers to impermissible/unofficial/private ones.
Another example of this: the crypto dinner. People paid him in his private capacity — and his press secretary said this was all in his private capacity. But why do you think those people attended the dinner? To purchase access/influence to the president, with all of his “official” powers. That is part of the dilemma the immunity opinion created.
Litman expanded on this argument in “Unsettling the Presidency,” an article she wrote with Katherine Shaw and Melissa Murray, law professors at the University of Pennsylvania and New York University.
“Whereas previously,” they wrote, “bargaining, settlement and other forms of dispute resolution happened in the shadow of the law, novel presidential settlements now happen in the shadow of lawlessness.”
“Presidential encroachments on the courts’ prerogatives,” they argued,
include the use of litigation — particularly in the context of the president’s lawsuits against, and the resulting settlements with, media companies — as a tool of presidential control and presidential power. They also include the president’s efforts to create shadow legal processes that mirror the formal legal process, but operate outside of it and under the president’s control.
The president’s use of executive orders and other actions targeting prominent law firms and universities, and the resulting “settlements” and “deals” they have generated, are exemplary of this approach.
The three went on to warn that “we have moved beyond the traditional account of a unitary executive that embodies all executive branch authority. Instead, what is ascendant is an unprecedented account of executive authority that occupies and wields the powers of all three branches of government.”
Not all scholars and practitioners are convinced to the same degree as Gerhardt of the potential effectiveness of the criminal prosecution of Trump.
Philip Allen Lacovara, a former deputy U.S. solicitor general and counsel to the Watergate special prosecutor, thinks the Supreme Court handed Trump a virtual get-out-of-jail card:
Although the wholly unjustified and constitutionally unsound decision in the Trump immunity case in 2024 purported to leave open the possibility of prosecuting a president (1) for some official acts and (2) for any unofficial acts, these exceptions are largely illusory — at least so long as the current majority remains on the Supreme Court.
The opinion in the case creates a virtually impenetrable barrier protecting Trump from being prosecuted for such things as corruption; complicity in unlawful, extrajudicial killing; selling pardons; soliciting contributions from prospective office seekers; awarding federal contracts to big donors; interfering with elections; and any of the other abuses in his rap sheet.
Lacovara provided me with detailed citations supporting his critique of Trump v. United States, virtually a memorandum of law, unfortunately too long to reprint here.
Lacovara pointedly noted that the court specifically exonerated Trump’s most egregious behavior, “allegations that Trump egged on the Jan. 6 rioters through his speech and tweets.”
“The alleged conduct,” he added, “largely consists of Trump’s communications in the form of tweets and a public address.”
But, Lacovara noted,
As the sole person charged by the Constitution with executing the laws of the United States, the president oversees — and thus will frequently speak publicly about — a vast array of activities that touch on nearly every aspect of American life.
Indeed, a long-recognized aspect of presidential power is using the office’s “bully pulpit” to persuade Americans, including by speaking forcefully or critically, in ways that the president believes would advance the public interest. He is even expected to comment on those matters of public concern that may not directly implicate the activities of the federal government — for instance, to comfort the nation in the wake of an emergency or tragedy.
The court ruling, Lacovara wrote, would prevent prosecution in cases where “there appears to be significant evidence of quid pro quo financial transactions (bribery) using the president’s office to grant favors in return for personal financial benefits for himself and his family.”
In other words, the hurdles prosecutors now face when determining whether to file criminal charges against Trump are not just high, but possibly prohibitively high.
Darryl K. Brown, a professor at the University of Virginia School of Law, wrote that
the problem in part is that there is so much we don’t know about what a president does or says behind closed doors. And even many conversations with others that might be part of a crime committed by unofficial acts, and that seem to a reasonable person to be private, might nonetheless be arguably official such that it would be covered by the immunity for official-acts crimes that the court granted in Trump v. United States.
A theoretical example might be a conversation between an administration official who is also a business partner of Trump or a Trump family member. Even a presidential conversation with such an official about, say, bribes they would pay to win a contract to build a hotel in another country might be wrapped up with official acts if it occurs in the context of a larger diplomatic negotiation with that country.
There have been widespread media reports, Brown continued,
of Trump’s primary negotiators with Russia, Iran, Israel and other countries — Jared Kushner and Steve Witkoff — talking about business deals in the same meetings in which they are acting as diplomats. The line between official and unofficial acts seems very muddy in the Trump administration, which probably works to Trump’s advantage under the court’s broad interpretation of presidential immunity.
The court’s immunity decision is such a big barrier, Brown wrote,
because the court stressed that nothing prosecutors do to obtain evidence can “chill” a president’s actions. The court’s majority fears that even, say, eliciting testimony from presidential advisers about statements and actions not in the public record could “seriously cripple” the president’s exercise of his official powers.
Lacovara was the most outspoken of those I contacted, writing:
The Supreme Court has licensed Trump to commit federal crimes as part of his sweeping array of “official” powers — anything within the “outer perimeter” of the functions that a president may do as president.
Under the theory that the majority of the Supreme Court subsequently adopted, Trump would have legal immunity if he ordered SEAL Team 6 to murder a political rival whom he designated a threat to national security.
That is the kind of power over life or death that many dictators over history have exercised.
Trump continues to try to act like a dictator. He likes to govern by decree — with his “executive actions,” such as using federal funds for his own projects regardless of the reasons Congress appropriated them, and even in defiance of statutory constraints. His various projects on the White House grounds, the Trumpian triumphal arch and his concept for an elitist golf course in place of a public park are all intended as monuments to himself — much like a pharaoh, a Roman emperor.
Beginning in his first term, Trump pointedly alerted both Americans and the world to his authoritarian and criminal aims. By the start of his second term, his vengefulness, venality, misuse of public power and inclination toward transgression were known by one and all, most especially the Supreme Court.
Which makes the court’s decision to give this man criminal immunity in the first place all the more inexplicable.
Inexplicable, that is, until you recognize the devotion of a majority on the court to an ideological agenda — the so-called unitary executive theory — at the expense of reality. In Trump’s case, the court’s commitment to unrestrained executive power amounts to giving a box of matches to a known arsonist.
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