Immunity - Donald Trump's shield from justice

The failed uprising of Donald Trump supporters, which took place on January 6, 2021, at the Capitol, haunts President-elect Trump, even though the US Supreme Court justices ruled in June 2024 that he enjoys immunity from any criminal prosecution for his involvement in the events of that day and the preceding days. The recent report by expert Jack Smith - who has since resigned - published by the US Department of Justice (DOJ) shows that Donald Trump could have been held criminally liable for several crimes related to voting in the 2020 presidential election, but also for inciting his fans to participate in the insurrection that took place on January 6, 2021.

According to 174 pages of the report published two days ago by the DOJ, it briefly presents the evidence discovered following the investigation launched, evidence that would have justified criminal charges in accordance with the principles of federal criminal prosecution. The document, approved for publication by Judge Aileen Cannon, provides important clarifications about the investigation and the decision to indict Trump, despite the legal obstacles encountered. The report, written by Jack Smith before his recent resignation, details the allegations and evidence collected against the former president-elect. It concluded that the evidence was strong enough to support a conviction, even though the DOJ later dropped its prosecution of Trump, citing the constitutional immunity of sitting presidents. Smith highlighted in the report that Trump was engaged in an "unprecedented criminal effort" to overturn the legitimate outcome of the 2020 presidential election in order to remain in power. Among the initial charges against Trump was conspiracy to obstruct election certification.

In the report, Smith categorically rejected allegations that his decision to prosecute Trump was politically influenced. He emphasized that the decision to indict Trump was made independently and was based on the federal interest in enforcing the law equally, especially in the context of the events of January 6, 2021, when the U.S. Capitol was stormed.

• DOJ Report: Trump Tried to Undermine Election Process, Transfer of Power

Smith argued that the prosecution was necessary to ensure accountability and respect for the law, regardless of the defendant's political affiliation or status. "There is a substantial federal interest in ensuring fair enforcement of the law in connection with the events of January 6, 2021," he wrote.

Special Counsel Jack Smith's final report provides a detailed account of Donald Trump's involvement in the events leading up to the January 6, 2021 attack on the U.S. Capitol. In addition, the document explores Trump's alleged violations of the law, identifying federal regulations under which the former president could be prosecuted.

According to the report, after losing the 2020 presidential election, Donald Trump launched a widespread disinformation campaign, claiming that the election was massively rigged. These claims have been debunked by election officials, the courts, and Trump's own legal counsel. However, he has persisted, amplifying these messages to his base of supporters. The newly released document shows that by deliberately spreading lies about the election, Trump has sought to undermine the legitimate functions of government, particularly the electoral process and the transfer of power, for which he could be indicted for conspiracy to undermine the United States. Moreover, Trump's fraud allegations undermined the constitutional right of American citizens to have a free and fair vote, which could lead to his indictment for conspiracy against civil rights, because, according to the report, Trump and his associates devised a plan to introduce false voter rolls in seven key states that he had lost. These rolls were sent to the US Congress in an attempt to create confusion and block the certification of the elections. The report shows that Trump was aware of the fraudulent nature of this plan and helped coordinate it.

The report's authors believe that the transmission of false voter rolls was a deliberate effort to obstruct the official procedure for certifying the electoral vote in Congress and that the false lists that were presented as official documents are an action that violates laws regarding the falsification and fraudulent use of government documents.

• Pressure on Vice President Mike Pence

The document released by the DOJ stated that in the days leading up to the events of January 6, 2021, Donald Trump exerted intense pressure on Vice President Mike Pence to persuade him to refuse to certify the results in the disputed states. The report emphasizes that Trump knew that Pence did not have the legal authority to intervene, but continued to pressure him, including through public statements. Law enforcement officials argue that Trump's pressure on Pence was an attempt to alter the legitimate results of the election, an act that constitutes a conspiracy to commit electoral fraud, and by Trump's attempt to obstruct the vice president from performing his official duties as president of the Senate, the incumbent president would have been liable for the crime of obstructing a public official in the execution of his duties.

These actions culminated on the morning of January 6, 2021, with Donald Trump's speech to his supporters, in which the incumbent president encouraged them to "fight hard" and "take our country back," which was perceived by the authors of the report published by the DOJ as a direct incitement to violent action.

The cited document qualifies Donald Trump's speech of January 6, 2021 as incitement to insurrection, and his calls for violent action can be considered a conspiracy to obstruct the functioning of the US Congress.

Thus, after Trump's speech, thousands of supporters headed to the Capitol, where they forcibly entered, endangering the lives of legislators and temporarily stopping the process of certifying the election of Joe Biden as US president. According to the DOJ report, Donald Trump delayed condemning the violence at the Capitol for hours, and when he did, the messages sent were ambiguous. Therefore, the report's authors believe that Trump could have been accused of indirectly supporting the violence by refusing to intervene quickly, and the fact that the incumbent president was warned in advance of the possibility of violence, but continued to encourage the crowd, represents complicity in the violence committed at the Capitol on January 6, 2021.

• Presidential immunity - the Supreme Court's constitutional argument for not indicting Trump

After the US Supreme Court ruled that presidents enjoy immunity for actions during their term, the team led by Jack Smith was forced to reassess the evidence. The purpose of this analysis was to determine whether Trump's private or official actions, for which immunity could be challenged, violated federal law. The report's conclusions led to the formulation of a new charge, based solely on unofficial actions or for which the alleged immunity could be challenged. These charges were issued by a new grand jury, strengthening the legal basis of the case.

A critical point of the report is the mention that the DOJ dropped the case after Trump won the 2024 presidential election. The Department's interpretation that the Constitution prohibits the prosecution of a sitting president was applied categorically, regardless of the seriousness of the charges or the strength of the evidence.

Trump's lawyers later stated that the dropping of the charges represents a "complete exoneration" of their client. Trump also used his platform, Truth Social, to criticize the report, claiming that Smith failed to prosecute "his boss's political opponent."

The fact is that, after such a decision by the US Supreme Court and the DOJ, it appears that a sitting US president can commit any criminal act at any time in the exercise of his official duties, because he has total immunity from criminal liability. Yet another reason why democracy is imperfect, but that doesn't mean we should give up on it.