‘Above the law’ in some cases: Supreme Court gives Trump − and future presidents − a special exception that will delay his prosecution

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Claire B. Wofford, College of Charleston

(THE CONVERSATION) The United States Supreme Court has handed former president Donald Trump what may be the most favorable legal decision he could have reasonably hoped for in his fight against federal prosecution for his attempts to reverse the 2020 election outcome.

Justices split along ideological lines in a 6-3 decision issued on July 1, 2024, in which the conservative-dominated court declared that a former president has “some immunity for criminal prosecution for official acts during his tenure in office.”

The majority’s use of the word “some,” however, obscures the extent to which its opinion ensures that it will be much more difficult for special counsel Jack Smith to prosecute Trump for actions taken around the 2020 election, much less win that prosecution.

And depending on the extent to which future presidents take advantage of the breadth of legal protection the court is granting, the ruling may also produce fundamental shifts in the nation’s system of checks and balances among the three branches of government and the ability of the legal system to ensure the president complies with the law.

Path of the case

At issue in the case was whether the former president could be prosecuted for actions he took related to...