Fact check: How does the DOJ determine whether to investigate a former president for alleged crimes?

1. Summary of the results

The DOJ's determination to investigate a former president for alleged crimes operates under several key principles and constraints. The fundamental standard is probable cause - requiring sufficient evidence to justify an investigation ^[1]. However, the process has become significantly more complex following recent Supreme Court rulings.

The Supreme Court has established that former presidents have absolute immunity from criminal prosecution for actions within their exclusive constitutional authority and at least presumptive immunity for official acts ^[2]. This ruling specifically impacts how the DOJ can proceed, as it implies that former President Trump is immune from prosecution for his official acts, including attempts to use the Justice Department to obstruct election results, and this immunity could apply to other former presidents ^[3].

The practical reality is that the president has significant influence over the Justice Department, and there are few constitutional limits on their power to open criminal investigations into perceived adversaries or critics ^[1]. This creates a complex dynamic where political considerations may influence investigative decisions.

2. Missing context/alternative viewpoints

The original question lacks several crucial contextual elements that significantly impact the answer:

• The recent Supreme Court immunity ruling fundamentally changed the landscape for investigating former presidents. The ACLU argues that this decision undermines the rule of law and the principle that no one is above the law, including the President ^[4], while supporters would argue it protects the presidency from politically motivated prosecutions.
• The distinction between official and unofficial acts is now central to any investigation decision, as this determines the level of immunity a former president enjoys ^[2].
• Political dynamics play a significant role - current administrations may face pressure both to investigate predecessors for accountability purposes and to avoid appearing politically motivated.
• Precedent and institutional norms heavily influence these decisions, as investigating former presidents is relatively unprecedented in American history.

Who benefits from different approaches:

• Legal advocacy organizations like the ACLU benefit from pushing narratives about accountability and rule of law
• Political parties benefit from either pursuing or blocking investigations depending on partisan alignment
• Former presidents themselves benefit from broad immunity interpretations
• Current administrations may benefit politically from either pursuing justice narratives or avoiding divisive investigations

3. Potential misinformation/bias in the original statement

The original question appears neutral and factual, seeking information about DOJ procedures rather than making claims. However, it omits the critical context of recent Supreme Court rulings that have fundamentally altered the legal framework for such investigations ^{[2] [3]}.

The question also doesn't acknowledge the inherently political nature of these decisions, given that the president has significant influence over the Justice Department ^[1]. This could lead to incomplete understanding of how these determinations actually work in practice versus in theory.

The framing suggests a purely legal/procedural process when the reality involves significant constitutional, political, and practical considerations that have evolved substantially, particularly following the Supreme Court's immunity ruling that places presidents above the law for official acts ^[4].