In an essay for Bloomberg Law, CERL’s Professor Claire Finkelstein and Professor Richard W. Painter of the University of Minnesota review the Trump immunity case, emphasizing how the immunity ruling has upset checks and balances, but judges retain a role:

“Can anything blunt the edge of this decision in Trump v. United States? To address the broader danger of unchecked presidential authority, only a Constitutional amendment would guarantee a president can be held accountable under the law. Putting such far-flung measures aside, the only hope we see is embedded in the Supreme Court’s decision to remand the case to the lower court in the first place. That decision suggests federal courts retain the ability to determine which presidential acts fall into which categories.

Thus, a president may claim action on the basis of inherent Article II power, but Trump v. United States suggests federal courts retain the ability to reject a president’s claim and to determine, instead, that the president was engaged in official acts of a non-constitutional nature, or that the president was acting in an unofficial capacity.

In the present criminal matter, US District Judge Tanya Chutkan will most likely, and properly, find that Donald Trump was acting in his personal capacity when he urged his supporters to descend upon the Capitol and coerce Congress to reject the electoral vote count. Trump, of course, will argue to the contrary. But Chutkan is the one who will decide.”

Claire Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy and Faculty Director of the Center for Ethics and the Rule of Law. Read her bio here. 

The views expressed here are the author’s own and do not necessarily represent those of any organization or university.