What legal standards would apply to pursuing criminal charges against a former U.S. president?
Executive summary
Criminal charges against a former U.S. president are governed by ordinary federal and state criminal law, but recent litigation and a Supreme Court decision created a new framework for when presidential acts can be immune from prosecution: the Court held former presidents have “some immunity” for official acts while leaving them answerable for unofficial acts [1] [2]. The unprecedented indictments of Donald Trump—two federal, two state, 88 total counts across cases, with 34 convictions in one New York trial and other counts dismissed or paused—illustrate how courts, prosecutors and political actors are testing those boundaries [3] [4] [5].
1. The baseline: ordinary criminal law applies once a president leaves office
Legal scholars and courts begin from the premise that once out of office a president is subject to “generally applicable criminal laws,” meaning ordinary statutes, grand juries, indictments, trials and sentencing procedures apply to former presidents the same as to other citizens [6] [2]. The Library of Congress and Cornell Law note that the Constitution gives no lasting immunities to former officials and that most arguments for immunity vanish after tenure ends [6] [2].
2. The sticking point: immunity for official acts—Supreme Court’s “some immunity” rule
The Supreme Court in litigation over a recent prosecution announced a tailored rule: former presidents can claim immunity for actions that were official acts taken within the scope of presidential duties, but they lack immunity for unofficial acts and for violating “generally applicable criminal laws” [1] [2]. That holding is novel and fact-dependent: courts must parse whether specific conduct was an official, discretionary presidential act or an unofficial act that falls outside protection [1] [2].
3. How courts evaluate immunity claims in practice
Lower courts confronted with immunity contests apply multi-part frameworks from the recent cases and treat immunity as narrower than absolute. In the election-obstruction prosecution, a federal appeals court found alleged acts “lacked any lawful discretionary authority” and said a former president is “answerable in court for his conduct” where acts were not legitimate official functions [1]. The Supreme Court’s standard paused trials while immunity questions were litigated and required case-by-case analysis [1] [3].
4. Statutory charges and how they map onto presidential behavior
Prosecutors have used ordinary statutes—e.g., obstruction of an official proceeding, falsifying records, RICO-style state racketeering statutes, and statutes governing classified materials—rather than special presidential-offense laws [4] [5] [1]. Courts have separately interpreted specific statutes (for example, 18 U.S.C. §1512(c)) in related case law, affecting prosecutors’ ability to use particular counts in presidential prosecutions [2].
5. Practical limits beyond legal doctrine: politics, timing and prosecutorial discretion
Even when legal avenues exist, political and practical constraints shape decisions. Prosecutors and appellate courts have moved cases, paused trials and in at least one state case seen disqualification of a prosecutor and eventual dismissal after successor review [5] [7]. The high-profile nature of such prosecutions—multiple indictments, media attention and the subject’s political role—places added pressure on trial management and prosecutorial choices [3] [7].
6. Historical context and precedent — there is little
Historically no president had been criminally prosecuted while in office; Ulysses S. Grant’s brief arrest for speeding aside, the machinery of indictment against a president or former president is untested until recent prosecutions [6] [2]. The set of recent indictments of a former president constitute the first sustained series of real-world tests of these doctrines [3] [4].
7. Competing viewpoints in the record
Legal experts and courts split over scope: many scholars and courts support the idea that former presidents can be charged for non‑official crimes, while the executive branch historically maintained that sitting presidents enjoy immunity from criminal prosecution [6] [2]. The appeals court and Supreme Court rulings reflect this tension by restricting immunity but protecting certain official acts [1] [2].
8. What remains unresolved and why it matters
Key questions remain unresolved in case law: how to draw the line between official and unofficial acts in specific fact patterns; how statutory elements intersect with immunity; and how political consequences—disqualifications, dismissals, or delayed trials—will influence doctrine. Current reporting documents ongoing litigation, paused trials and both convictions and dismissals across the recent prosecutions, showing that the law will continue to evolve as courts apply the new immunity framework to concrete allegations [3] [4] [5].
Limitations: available sources do not mention specific future or hypothetical standards beyond the recent cases and commentary summarized above; they focus on the Trump prosecutions and contemporaneous court rulings and analyses [3] [1] [2].