(Image via abc.com) 

Staff Writer: Gwen Pichette

Email: gpichette@umassd.edu

Former President Donald Trump was denied presidential immunity for the criminal charges of the event on January 6th, 2021—the day of the infamous Capitol riot.

Trump is certainly no stranger to criminal accusations, with a whopping ninety-one felony counts across various cases. For January 6th specifically, Trump is facing “four counts including conspiracy to defraud the US, tampering with a witness, and conspiracy against the rights of citizens.”

He is finally facing the consequences for inciting the riot on the Capitol three years later, but why has it taken so long? 

The delay can be chalked up to a couple of different factors, which, when combined, make reaching a definitive decision exceedingly difficult. 

For one, the charges Trump faces have never been seen before throughout the course of U.S. history. There are no precedents for prosecutors to follow. Such confusion leaves only intense disputes in the case’s wake. 

The people remain divided. Some believe the riot was an infringement on American democracy and that Trump should be prosecuted accordingly. And some believe that Trump should be granted presidential immunity from his charges. 

Presidential immunity gives the president protection against particular lawsuits and crimes. While this legal policy may sound quite simple in theory, there has been some confusion about its limitations and bounds, mainly when exactly these protections end. 

This issue has proved to be a hurdle for prosecutors. 

Prosecutors are looking to the blueprint for the United States government — the Constitution — for guidance. Unfortunately, according to David Schultz, a constitutional law expert, there is “nothing in the text of the Constitution that speaks to immunity in one way or another.” 

If such information about presidential immunity were stated explicitly in the Constitution, it would have made it far easier to make a swift decision. However, although not stated, there is textual evidence from the framers themselves that allows prosecutors to glean their general feelings on the matter.

Notably, Schultz says that the implications from the language the framers used in outside documents support the statement that “there might have been some immunity while a person was president of the United States, [but] once they’ve left office there’s no immunity and they could be charged with the crime.” 

In effect, this means that Trump would have the same standing as any other citizen of the US who committed a crime: with no special privileges and with the prospect of jail time entirely possible. 

Many have expressed similar beliefs to Schultz, notably U.S. District Judge Tanya Chutkan, who shot down Trump’s attempt to use presidential immunity to protect him from charges. Judge Chutkan vehemently stated that whatever privileges a previous president may have been entitled to, it “does not confer a lifelong ‘get-out-of-jail-free’ pass.”

However, Trump’s lawyers staunchly reject this argument. They believe that the denial of presidential immunity will disrupt our understanding of this particular presidency and future ones. 

“[S]uch prosecutions will recur and become increasingly common, ushering in destructive cycles of recrimination,” they address. “Without immunity from criminal prosecution, the Presidency as we know it will cease to exist.” 

To further the mounting tension, the 2024 Presidential election is looming in November —- only nine months away. 

As of February 13th, appeals will be frozen for another week as prosecutors scramble to decide. Trump’s special counsel, Jack Smith, was granted a week to respond to Trump’s emergency application for the Supreme Court justices to reconsider the ruling that set him in place for criminal charges. He wishes to prevent a trial from happening anytime soon. 

On February 14th, Jack Smith pushed for the federal election interference case to occur sooner rather than later. It is now up to the Supreme Court to either bring the case to trial or take up Trump’s bold claim “on an expedited process.”

Many voters are understandably anxious to see the trial’s outcome, as it will significantly sway their decisions in the upcoming election. 

Due to the case’s complexity, there’s no telling when an end in sight will be.