By Jennifer Selin
A new filing by special counsel Jack Smith in the case he has brought against Donald Trump for his alleged attempts to overturn the 2020 presidential election provides greater detail and support for Smith’s argument that Trump, while president, committed illegal acts to reverse his 2020 election loss.
Those acts, argues Smith, were taken by Trump as a candidate for reelection and therefore are not covered by a 2024 Supreme Court opinion related to the case that says presidents’ official actions are immune from prosecution when they exercise their core constitutional powers.
But are the actions that fall outside of a president’s core constitutional powers clearly defined? Smith’s filing is not only relevant to his 2020 election subversion case against Trump but will likely affect the next and future presidents of the United States. The filing, and inevitable legal battles that will result from it, will help clarify precisely how far presidential immunity extends.
While arguments related to the Trump case will take place in a courtroom, Congress has and will continue to have an underappreciated responsibility in defining and curbing presidential power. As a constitutional law scholar who studies government institutions and how they work, I believe that Congress has a unique role in shaping the balance of powers among the three branches of government at this moment in history.
The Trump case and the precedent on which it relies recognize that the most constitutionally suspect presidential actions are those that exceed the outer limits of one branch’s authority or undermine the powers of another. For example, with respect to the certification of the results of a presidential election, the court noted that Congress has legislated extensively and the president plays no direct constitutional or statutory role in that process.
By acting under its own constitutional legislative and oversight authority, Congress can push back against presidential power.
Drew Angerer/AFP via Getty Images
‘Zone of twilight’
In August 2023, a federal grand jury indicted Trump on four counts of conduct related to conspiring to overturn the November 2020 presidential election.
Trump contested the indictment, alleging the president has absolute immunity from criminal prosecution for official actions taken while in office. The case made its way to the Supreme Court, and the court made its now famous immunity ruling, stating: “The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.”
Yet not all presidential actions fall within these core powers. The court differentiated between three types of presidential action.
Some actions clearly fall within the scope of the president’s exclusive constitutional authority. These responsibilities include serving as commander in chief, recognizing foreign governments and signing or vetoing the bills Congress passes. Presidential actions under this authority are absolutely immune from prosecution.
On the other end of the spectrum, some actions clearly are outside the scope of the president’s constitutional authority. For example, when a president files for reelection or sets up a campaign committee, the president acts as a candidate, not as occupant of the office of the presidency. There is no immunity for these acts.
Yet sometimes the president acts in what the Supreme Court has called a “zone of twilight,” where the president and Congress share powers or in areas that are within 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 “zone of twilight” instances, a prosecution cannot hinder the president’s ability to do the job. That means the president has immunity unless the prosecutor can show that prosecution will not upset the balance of power between the three branches of government.
Why immunity?
The primary reason for granting immunity to public officials, including to prosecutors and judges, is to enable them to serve the public without the risk of being punished criminally for doing what they think best serves the country. Potential criminal liability raises the possibility that public officials would make decisions based on political opponents’ threats, rather than by exercising the independent judgment required for effective public service.
Fear of political threat is of particular concern for the president. As the court explained in the Trump case, without immunity, “the President would be chilled from taking the ‘bold and unhesitating action’” required of the office.
In contrast to other federal offices in the U.S. constitutional system, the presidency composes an entire branch of government, known as the executive branch. Prior Supreme Court decisions recognized the president’s duties are “of unrivaled gravity and breadth” in that the president makes the most sensitive and far reaching decisions entrusted to any elected official.
The president is vested with the executive power of the United States and serves as the nation’s leader in politics and foreign and domestic policy. And the president’s job is far more complex than the 18th-century framers of the Constitution could have imagined.
The modern executive branch includes hundreds of agencies and millions of federal employees who help the president execute the law. As a result, the president has more political and policy advisers than anyone else in government. The promise of immunity helps these advisers provide the president nuanced information on policy and politics.
And while the expansion of the executive branch may seem like a modern phenomenon, concerns over increased executive power are nothing new. Indeed, at the beginning of President George Washington’s second term, Benjamin Franklin “was struck dumb with astonishment at the sentiments … (t)hat the executive alone shall have the right of judging what shall be kept secret, and what shall be made public.”
This raises the question, how does Congress write laws and oversee the implementation of them in a constitutionally, legally and historically established world where the president has such power?
Saul Loeb/AFP via Getty Images
What are the limits?
While the phrase “separation of powers” has long been used to describe the U.S. system of government, in fact, U.S. legal history shows that the American constitutional system is one of shared, not separate, powers.
Presidential immunity sits purely within this context. So, in the wake of the Supreme Court’s 2024 ruling, it’s not up to the president to decide which of his actions in that “zone of twilight” will be given immunity and which ones won’t.
That’s up to the courts and Congress.
Here’s how that works: The extent of presidential immunity rests on the federal judiciary’s rulings on what constitutes official and unofficial acts. Articulated first by the Supreme Court in 1803, it is the judiciary’s job “to say what the law is.”
But Congress writes the law. And Congress oversees how the president implements it.
Congress has investigated the conduct of at least 15 sitting or former presidents. For example, in the wake of the Watergate scandal, the congressional investigations revealed crucial evidence of President Nixon’s illegal actions and ultimately led to his resignation.
In doing so, Congress relied on its own constitutional authority as a way to use litigation-like tools to shed light on presidential actions that are outside the president’s official duties or in the “zone of twilight.”
Not only did these investigations inform the public about presidential actions, they helped Congress assert its position in the American constitutional system of shared powers.
In a legal world that, in part, defines presidential immunity based on the balance of power between the three branches of government, this can’t be a bad thing.
Jennifer Selin is Associate Professor of Law at Arizona State University.
Amy Pacheco says
Why are you so anti Trump? Doesn’t look good as a county News outlet🙅🏼♀️🙅🏼♀️
Pierre Tristam says
The article is an explanation of the special counsel’s latest filing. It might help to read it first before making a very odd statement. That aside, are you suggesting all news outlets should never write anything that would appear critical of whoever you support?
Jessie says
I think what Amy is saying is the lack of equal reporting of both sides by a new outlet. This News outlet seems to be ONLY critical of whoever YOU do not support.
Pierre Tristam says
In Michael Massing’s words, “’Balanced’ is not fair, it’s just an easy way of avoiding real reporting and shirking our responsibility to inform readers.” To suggest that there’s any equivalency in reporting on Trump’s lies and criminal behavior with reporting on Harris is, from readers like you, a further attempt to silence reality-based journalism. You won’t get that satisfaction here. Lucky for you–unlucky for the country–you don’t lack for an endless number of other sources that are happy to pander to your preferred propaganda, however.
Laurel says
Jesse: Please explain how to balance out criticism of an individual found guilty of sexual assault and business fraud (34 felony counts) v. an individual whose only criminal record is prosecuting criminals?
Dennis C Rathsam says
Your bias as hell, against Trump….
Pierre Tristam says
As anyone with any respect for our electoral system ought to be against those who undermine it and seek to demolish it.
Brian says
Is that like the system that has presidential primaries to decide a candidate, but just coronated a presidential candidate two months ago without a SINGLE VOTE?
Laurel says
I guess you didn’t watch the DNC.
Ray W, says
I am curious, Brian.
My understanding of history is that Lincoln did not attend the 1860 Republican nominating convention. His representatives lobbied behind the scenes on his behalf, promising favorable benefits and positions that Lincoln could later deny. He was second on the first vote among many candidates, tied with Seward on the second among two candidates, and after more lobbying, first on the third ballot.
If this is true, something tells me that the Constitution does not mandate anything about who is appointed to lead a party in the federal election for president.
If that is true, then something tells me that when state after state nominated Vice President Harris to lead the Democratic ticket, that act of voting proves you wrong.
Please tell me that you don’t think you are another Constitutional scholar! I’d find it disheartening that another person could think he is in the same category as Dennis C. Rathsam.
Dennis C Rathsam says
As the wheels fall off the Harris folly, and TRUMP gets stronger everyday. Obviously you & your liberal friends are preparing for a historic defeat! You can swing that felon crap all you like, sane Americans dont give a rats ass! They want action! Not the same old shit show! You could be right Pierre, but as a patriot, and a schollar of the constitution….. TRUMP will prevail.
Ray W, says
Didn’t you predict a red tsunami in 2022, Dennis C. Rathsam?
I apologize if you didn’t, but you engage in so many acts of misinformation laundering that your erroneous comments seem to cascade over each other.
I remain unconvinced that you are a constitutional scholar, unless somehow scholar doesn’t mean what it used to mean.
Looking to find the possible limits on the definition of scholar, I went to Merriam-Webster for synonyms: teacher, sage, pundit, savant, wizard, master, mentor, rabbi, polymath, seer. …
I then looked for antonyms: know-nothing, ignoramus, idiot, imbecile, donkey, dolt, jackass, dunce, fool. …
“Sane Americans don’t give a rat’s ass!” about felony convictions”!!? Hmmmm!
As an aside, I have commented on several occasions that I am not a scholar on many of the subjects about which I comment. I am, at best, a curious student. There can be a difference between a scholar and a student.
As an aside, I don’t know who will win the presidential election.
Sherry says
Thanks so much Pierre! Cult mentality abounds!
Ray W, says
Hello Amy Pacheco.
Has it occurred to you that it might be an act of virtue to oppose our vengeful former president?
Sherry says
@ amy. . . You do understand that trump is a “Convicted Felon”, who “Incited an Insurrection” against our democracy, who was found guilty of “Sexual Assault” and “Defamation” of his assault victim. . . among other crimes like “Fraud” and sins like “Adultery”! The real question is why in the world would you or anyone ask that question????
BIG Neighbor says
The closing statement is the most telling about the topic, the trusting of media and access to information for ensuring a future. When people engage in public discourse, isn’t there an implied contract of good faith in respecting the rights of all, meaning…. we have an obligation that whatever comes off on the surface as an actor is what is in the heart? Without that, aren’t we likely to cause harm to some or, in the end, to all? Regardless of social contract, I believe it is the intimacy of the new media web space as consumers of “distributed learning” that foils this spirit of faith agreement by upsetting, provoking and enticing margins of users into actions they would normally never take. The power and economic benefit to isolate and harvest digital subscribers by hyper-channeling bias as addiction has brought us to a new mindset of US and them. Leaders that conjure instability to protect their interests and influence followers need the numbers of believers and ministers to give their purpose meaning. Unfortunately for all, a good portion of the population worships THAT as opposed to the whole. Constitutional Powers are literally determined by the People and the practice of manufacturing deception and hate as opposed to goods and services for profit is our biggest persistent insider threat.
There is an answer. Stop using social media that slowly creeps and conditions the behavior of picking sides by jumping to conclusions about the whole picture because we can’t understand complexities. Life constitutes more than THAT. When trying to understand and belong to something, insist news and public service announcements released by federal, state and local government be distributed by those agencies, not on social media platforms.
BIG Neighbor says
https://sites.google.com/site/macrocausem/cyber-bullying-another-term-for-politics
Joe D says
You are right about the mixing of Federal , State and local information releases, on Social Media…SORT of….
In a PERFECT world (whatever that is), getting out important information SHOULD be released through standard Media outlets. Those outlets SHOULD be presenting the news/information in a FACTUAL and UNBIASED way. That’s NOT what’s happening (I’m talking about YOU, FOX and NEWS MAX). You can listen to the same news story, reported by major news outlets…then listen to reporting on the same news story reported by Fox and News Max, and you would SWEAR you weren’t talking about the same story!!
When the government is trying to release information (especially PUBLIC SERVICE information), they want to get the information out as QUICKLY and to as MANY people as possible. In TODAY’S WORLD, that isn’t always main stream media. SOME people ONLY get their information from Social Media, so skipping those LESS formal information outlets COULD mean, an unfortunately LARGE number of people wouldn’t see the public service or government information release.
BIG Neighbor says
https://www.businessinsider.com/hurricane-helene-relief-disinformation-misinformation-north-carolina-democrats-republicans-2024-10
BillC says
Yes, Fox News being the biggest and most biased offender.
Ray W, says
Hello BIG Neighbor.
Can it be argued that your point is exactly what Big Tobacco did to valid but fledgling scientific medical research in its effort to mislead the public throughout the 50s, 60s, and 70s? What Big Oil did to valid but fledgling scientific climate research in its effort to mislead the public over the past 50 years? What Big News did with repeated forms of Yellow Journalism over the past 130 years to mislead the public about immigration?
Can it be argued that each of these three lessons have been studied, internalized and improved by one of our political parties to spread mistrust of medical science, climate science, and immigration?
Senator J.D. Vance argued just the other day that if lying about an issue would drive future debate against immigration, then he would continue to lie, as if intentionally lying about something can ever be considered a virtuous act. He has also argued that because former President Trump peacefully conceded power on January 20th, 2021, everything he did before and after that date doesn’t matter.
Yes, BIG Neighbor, you have a valid point. But validity only allows one to stay in the argument; it does not, by itself, win the argument.
Perhaps you are right in arguing that by magically ending social media we will all be better off.
My point for the past three years or so is that the leaders of one of our two political parties have engaged in a politics of violence against the “other”, whomever that other populace might comprise at the whim of the vengeful among us.
When will it be time to start beheading Democrats, a local Republican politician intoned on the radio in January 2021? If you elect me president, I promise to begin by slitting throats on day one in Washington, said our governor earlier this year. Our former president says he will crush vermin, that there will be blood on our streets, that former generals will be executed, and on and on. A Republican senator tells people to get out of cars and throw protestors from bridges if traffic is impeded. A Republican gubernatorial candidate tells rally goers that “some people need killing.” A Republican senatorial candidate tells followers to strap on Glocks before leaving home to vote.
This is directed to the gullible FlaglerLive readers among us. One of our two political parties hold vengeance as its foundation from which to spread its message of hate. If lying can further vengeance, then lying will do.
One decent thing has happened over the past few years. Those few but vocal Flagler County residents who insisted that Mr. Tristam was a Muslim extremist apparently have realized how stupid they were, as it appears that they no longer ask the Sheriff to post an additional deputy to the courthouse to “escort” Mr. Tristam if ever he were to dare to act as a reporter.
BIG Neighbor says
Ray, thanks for considering my words. When I offered an answer, I think of Author Wendell Berry and why I post as BIG Neighbor. These are my thoughts, without taking sides to argue, to strive for a place in community where Faith and respect embody the constant spiritual struggle for perfection. Many give up against the BIG corporations and the push against nature to keep what they have. Some insist fighting one another is the only answer in spite of costs. That’s what comes to my mind with winning arguments. I just offer an answer, not THE answer. Now Mr. Berry’s work on the other hand….I’d sum him up this way:
Land and farming in the mainstream American urban mindset are a separate culture, creating voids in understanding family legacies. These degenerative policies and market forces stem from the industrial age to go MEGA. This traditional interpretation points directly to the virtues of *NextGen philosophies in bringing access to local leaders to reverse the damage done with failing corporate practices and greed.
Ray W, says
You are welcome, BIG Neighbor.
Your point about having your presenting but one of many possible answers is welcome. This is one reason why I now end most of my comments with the phrase “make of this what you will.”
And, if i understand you, I agree that much of today’s BIG agriculture utilizes a business model that does not include many valid economic costs into the overall decision on what to grow and where.
I recall from a decade or so ago a study of communities of European voles that were suddenly dying off. The mothers had begun commonly eating their young. It was determined that agricultural practices had shifted from a form of small family farm omni culture to corporate monoculture. Where many different crops had once been grown within the range of the voles, they thrived. When an entire region was devoted to growing one crop, a crucial part of the food chain was missing, and the voles could no longer produce an enzyme necessary for life unless they ate their young. So, they ate their young to get what little enzyme the young produced.
Reason commands that all valid perspectives should be considered, and the best of the many possible valid choices should be adopted, just as all invalid perspectives should be rejected. In the world of legal reasoning, a.k.a., argumentation, the purpose of a motion to dismiss a criminal charge is to accept all of the opponent’s facts as true for purposes of argument. If the legal arguments are then deemed invalid, even after accepting the opposing facts as true, then the case must be dismissed.
In the civil arena, an arena in which I seldom practiced, a motion to dismiss a complaint operates in a similar manner. The reason that most of the 2020 election claims challenging the validity of the vote were dismissed without a hearing was because the claims alleged in the complaint weren’t supported by any competent and reliable factual evidence, i.e., there was nothing to accept as true. Many were dismissed with prejudice.
Marlee says
EVERYONE….Do you remember this???? Right out of Trump’s mouth…..this guy is dangerous.
Trump told Christian nationalists in Florida that the 2024 election would be the last one if he wins. He begged them to vote for him “just this time, then in four years you won’t have to vote again.”
Laurel says
So, what happens when we have a President who behaves like the Mafia? When many in Congress are actually afraid of him, and instead of monitoring him for illegalities, they support him in order to keep their personal powers? What of the Supreme Court, who give him extra powers that no other President before him had, or parts of the Judicial System who slow down his possible convictions? When this king threatens to ruin people, and does so, and also sends signals, some blatant, to supporters to act out in violence?
Do we not know the difference? Do we let him go on technicalities? This is what our Constitution states?
Joe D says
Here we go AGAIN! And to those of you that are ready to accuse Jack Smith of TIMING his release of charges right before the election for POLITICAL purposes, he really didn’t.
He filed these charges months ago, but former President Trump appealed the decision to his hand appointed ultra conservative “buddies” on the Supreme Court. That delayed a decision on these charges. Once the Supreme Court made their rulings in JULY 2024 about what behavior of the president could be considered immune “official core duties,” Jack Smith had to go back through his charges and CAREFULLY remove any portions of his case that NOW conflicted with the Supreme Court Ruling.
The most confusing part of the Supreme Court ruling excluding CORE presidential DUTIES, was that Smith had to take out any charges where Trump had CONSULTED with certain Legal advisors in his administration, about what he wanted to do…even though the ACTIONS the President wanted to do (fake electors/ pressuring State Government officials to “find” more votes) didn’t fall under his CORE duties as President…SOME of those PLANS were discussed with his legal advisers or other staff who could be considered legal consultants. Remember that law that states that what is discussed by a “client” (the president) and his “attorneys” ( the president’s legal advisers) is consider “PRIVILEGED” ( that means it can be kept SECRET just between them), and the courts (Jack Smith) couldn’t ask those legal advisers to testify in a court proceeding about what Trump said to them. I’m sure I’ve oversimplified the situation after the July 2024 Supreme Court ruling, but I THINK I’ve got the idea correct.
So after the Supreme Court decision in July, Jack Smith and his legal team, had to go back over the charges, and REMOVE any charges which conflicted with the new guidelines. As an aside….President Trump GENERALLY considers ALL his actions as CORE duties of the president, no matters what he does (that’s called “ABSOLUTE” immunity)…but Jack Smith and his legal team, are saying “NO, you can’t just do ANYTHING you want while President [that would make you a DICTATOR], there are LIMITS to those CORE presidential functions!”
Revising the charges, taking out those charges that NOW don’t fit with the Supreme Court PARTIAL (yes partial, not absolute) presidential immunity, took MONTHS to complete, and re-file. If anyone is to blame for the timing of these revised charges, it’s Trump and his legal team. Jack Smith asked that due to the importance of this case, that it go DIRECTLY to the Supreme Court, skipping the long delays as the case snaked its way through the lower court system. The Supreme Court and Donald Trump’s legal team, said “No!” So here the revised charges are out…weeks before the election.
And you can BET, if President Trump wins re-election, he will use his PARTIAL presidential immunity to either have the case ENTIRELY DROPPED, or at least have the case held up for 4 years until he’s out of office.
This article has no anti-Trump flavor, they are just reporting the FACTS…something we haven’t seen from Donald Trump since 2016 (if EVER).
The problem for a lot of people, it they don’t LIKE what the facts ARE! As they say: “The TRUTH hurts.”
jackson says
We’ve reached an inflection point in our nation’s history and we are faced with a stark choice. We can choose The Constitution of the United States of America or Donald Trump! Trump has told us and showed us in no uncertain terms that the two cannot coexist in our government simultaneously. This choice should be an easy one, but in these last days of the year 2024 it seems not to be. America, MUST choose wisely! and it can`t be trump.
Judith G. Michaud says
As I read the question , should Trump be tried for his efforts to overturn the election and none of responders answered yes or no ! So let me be the first to say not only say yes , but it should have been done years ago ! He is a convicted criminal and sex offender running to be president! What is wrong with some people ? How could they be that brain dead to what they have seen and heard with their own eyes and ears. If any one you think for one minute Trump will be your hero, think again and read Project 2025. After reading the first 10 pages, NO Republican should be in office anywhere ! If anyone of us committed the crimes Trump did, we would be sitting in prison right now ! No one is above the law !
BIG Neighbor says
The headline was not a question:
Why Trump Should Be Tried for Efforts to Overturn 2020 Election
So the declaration stands. I don’t see an argument, especially with this matter.
Laurel says
JGM: I’ll tell you why I have such a problem with this stubborn mindset. When I was 15-16 years of age, I had a boyfriend who was (clearly now) a sociopath. At the time, all the girls thought he was super cool, and he was. He dressed to the 9’s and always drove a really cool car (I didn’t know at the time all those cars were stolen!). We all just thought he was “it.” When he picked me up from Junior High School, it was like the parting of the sea, and I proudly strutted through the opening crowd to his fabulous green muscle Chevy SS with the broad white strip.
So, of course, my family didn’t like him, and, of course, I stuck up for him at every turn. I was so conned! He was smart and manipulative, and I thought he was the best…until he, and a friend, stole my mother’s purse. I didn’t believe it, and again, stuck up for him. When it was finally proven to be true, I broke up with him.
Now, here’s a 16 year old girl, with this boy showing up in her school class, or sitting in front of her publicly and crying! I got letter after letter from him, trying to convince me to come back to him. I got poems and sob stories, but I was done. I never went back.
I have always considered myself fortunate to learn this lesson so early, and have been skeptical ever since. When I see grown adults believing, or simply backing this con of a man, running for President today, it is a shame they are so gullible, and that they will learn the hard way if he is elected. They will continue to ignore the signs, as well as the blatant bigotry and lies, and continue to back him…until it is too late. What’s really bad about that is, we will all be dragged down too.
To me, and to many others, Trump is an open book, as is Vance. To others, he is to be a protected victim, who makes them promises that he, in reality, will not keep. He will save his own ass, because, just like that old boyfriend of mine, that’s all that matters to him.
Deport repubicons says
That orange stain should be locked up! Where’s the lock her up crowd? Sad people would want a career criminal and absolute trash of a person to hold the nations highest position.
Samuel says
Trump is a domestic terrorists and he should be arrested and charge with the insurrection just like his foot soldiers were. And he is gearing up for another insurrection so, he needs to be charged again.
Angela says
Trump used the power of the White House to rule as a Dictator. Trump should have been arrested January 7th.
Keep Flagler Beautiful says
Our great Commander-in-Chief, Joe Biden, should be court martialed for abandoning his own troops in Afghanistan.
Sherry says
@keep. . . Not So! Didn’t you hear that the “conservative majority” Supreme court ruled that Presidents are immune from the liability of all “official Presidential” acts?
While trump’s criminal acts were certainly not committed as part of his official duties. . . you know, inciting an insurrection against our democracy, fraud, falsifying business records. . . found guilty of sexual assault and defamation of his victim. . . those things! Let’s throw in moral and character flaws such as adultery, racism and pathologically lying to round out the picture. Is that the picture of the person you prefer to be our President. . . really? What does that say about your judgement?
Barry Poimboeuf says
Why is the left so intent on more and more investigations against Trump trying to find something to put him away. You don’t have to look for evidence that the Biden and Clinton gang has committed crimes but no one charges them. It amazes me that Trump has given up his salary as president, some of his net worth, and his prior reputation of being a great business man only to be our president to save our country from being flushed down the toilet by these dangerous liberals. They are trying to change our country in to a communist country. There is no lack of evidence in the crimes they have committed.
God Bless America
Pierre Tristam says
Falsequivalentitis: a disease as deadly to the country as a pandemic.
Laurel says
And that’s what happens when Fox Entertainment, Newsmax and the like, are running in the background of the house all day long. One sided propaganda until it actually becomes truth to some. Amazing!
FlaPharmTech says
I would encourage you to consume actual news, fact based news, and not conspiracy theory musings, fictional crap.
Sherry says
@barry. . . Either present “credible factual evidence” for your ridiculous claims of crimes committed by Joe Biden and Bill Clinton (our Presidents), or we will all know that you are only capable of posting hate filled BS Fox/Newsmax talking points. Thanks and stay safe.