How Donald Trump’s Candidacy Tests the US Constitution

Like no one before him, Donald Trump is at once a former president, a leading candidate to be nominated for the presidency again, and a criminal defendant. He faces 91 felony charges in four separate cases for conduct before, during and after his presidency, including conspiring to defraud the US in his efforts to overturn his 2020 election loss, mishandling classified documents, and falsifying business records to cover up hush money to an adult film actress. This unprecedented situation raises questions that previously would have been implausible law school hypotheticals. These are some of them.

Trump says his efforts to overturn his defeat by Joe Biden — the subject of two of the four criminal cases against him — were official acts and therefore immune from prosecution. His legal team notes that, in 2021, the Senate fell short of the two-thirds majority vote needed to convict him of an impeachment charge related to that same behavior. Trump’s immunity claim was rejected on Dec. 1 by a US district judge who suggested he was seeking “the divine right of kings to evade the criminal accountability that governs his fellow citizens.” That decision was upheld by a unanimous decision of a three-judge appeals court panel on Feb. 6. But on Feb. 28, the Supreme Court announced that it would hear an appeal filed by Trump, scheduling arguments for the week of April 22, a move that will keep any trial on hold and could potentially push its opening beyond the November election. The Supreme Court in the past has held that presidents are entitled to sweeping protection over actions they took within the “outer perimeter” of their official duties. But that was about immunity from civil lawsuits. Trump is the first former president to face federal charges, so claims of immunity from criminal prosecution are uncharted territory.