Noah Feldman, Columnist

Jack Smith Faces a Tough Call in Trump’s Jan. 6 Case

The special prosecutor may have to decide between trying Donald Trump on fewer charges of election interference, or not at all.

April 27, 2024 at 12:00 PM UTC

By Noah Feldman

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

Facing some tough calls.
Photographer: Drew Angerer/Getty Images

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A former president does not have absolute immunity from criminal prosecution for acts committed in office. On that much, the justices of the Supreme Court seemed to agree while hearing oral argument about the Jan. 6 criminal charges against Donald Trump.

Unfortunately, however, that apparent consensus likely won’t be the end of the matter. There remains the tricky question of whether a former president might be immune from prosecution for official acts, as opposed to acts performed in a private capacity. Here the justices seemed to differ.