How have constitutional law scholars evaluated the strength of the racketeering claim against Donald J. Trump?
Executive summary
Constitutional law scholars are sharply divided about the legal strength of the racketeering claim against Donald J. Trump: many emphasize that the Supreme Court’s recent holding carving out absolute immunity for a president’s core official acts could narrow prosecutors’ ability to tie allegedly illegal private conduct to official duties [1] [2], while others stress that immunity does not — and should not — shield plainly unofficial conduct alleged in the racketeering indictment [3] [4]. Amici briefs filed by constitutional scholars and the contours of appellate decisions in state cases have become the battleground for these competing legal frames [4] [5] [6].
1. Immunity’s new weight: why some scholars believe RICO hits a constitutional wall
A major cluster of scholars argues that the Supreme Court’s decision recognizing absolute immunity for presidential acts within a president’s “exclusive sphere” creates a significant obstacle for racketeering prosecutions that seek to treat coordinated efforts around official acts as criminal, because the Court held that courts may not adjudicate prosecutions that require examining those official actions [2] [1]. That line of thinking is echoed in filings by constitutional experts arguing Trump’s defense that the Constitution grants broad protections for certain presidential conduct, and those filings have been cited in amici briefs supporting immunity defenses [4] [5]. Supporters of this view warn that if prosecutors must avoid any inquiry that touches protected official decisions, RICO theories that hinge on a mixture of public and private conduct risk being curtailed [1].
2. The counterargument: immunity is bounded and should not swallow RICO entirely
Other scholars and commentators insist the Court’s immunity ruling was carefully cabined: it protects only “official acts” within the president’s exclusive constitutional authority and leaves presumptive vulnerability for unofficial conduct, meaning prosecutors can still pursue racketeering theories focused on private schemes and criminal means outside the president’s core powers [3] [2]. Brookings analysts and like-minded constitutional commentators underscore that the ruling leaves room to treat efforts that were “private” — even if politically connected — as unprotected and therefore subject to ordinary criminal law, a view emphasizing separation-of-powers limits on immunity [3] [1].
3. Strategic litigation and mixed messages from scholars as amici
The public record shows constitutional scholars have not spoken with one voice: the CAC scholars’ brief and other academic filings present nuanced arguments about the limits of immunity and whether particular acts are official or private [4] [5]. That fragmentation has practical effects because prosecutors and defense teams now litigate over factual characterizations — whether a given act is an exercise of constitutional duty or a private illegal scheme — and scholars’ briefs are being used by both sides to press those factual-legal distinctions to appellate courts [4] [5].
4. State prosecutions, selective-enforcement concerns, and the RICO frame
In state cases and appeals, judges and scholars have grappled with related issues, including claims of selective enforcement and how state laws intersect with racketeering theories; for example, an appellate decision in New York reflected judicial wrestling with allegations that prosecutorial decisions appeared politically motivated, a fact pattern scholars cite when assessing enforceability and legitimacy of RICO-style prosecutions [6]. Critics assembled in reports like the Lawfare/committee material argue procedural and instructional errors in state prosecutions illustrate risks to defendants’ constitutional rights and caution against expansive RICO use without clear legal guardrails [7].
5. Political context, prior racketeering fights, and why scholars proceed cautiously
Scholars also place the present racketeering claims in political and doctrinal context: Trump’s own public statements frame prosecutions as political attacks [8], and historical litigations invoking racketeering — such as the long fight over Trump University racketeering claims — remind commentators that RICO is a potent statutory tool that courts have sometimes narrowed when used outside its core purposes [9]. That mix of high-stakes politics, recent Supreme Court immunities, divergent academic briefs, and precedent has produced a scholarly judgment that the constitutional strength of the racketeering claim is highly fact dependent: plausible and prosecutable if it can be tethered to private criminal means, precarious if it depends on recharacterizing protected official acts [3] [1] [2] [4].