Politics
Column: After the Supreme Court's immunity ruling, can Donald Trump still be tried for Jan. 6?
The Supreme Court ended a tumultuous term with one final sledgehammer blow on Monday. Its decision on Donald Trump’s claim of immunity from criminal charges forecloses any possibility that he will be tried for Jan. 6 before the election, substantially guts the prosecution and reshapes the Constitution to place the president singularly beyond the reach of criminal law.
The opinion was even more expansive in its grant of presidential immunity than commentators anticipated after the oral argument suggested the conservative majority was headed that way. And while it theoretically permits prosecution of some of the long list of Trump’s pernicious and treacherous acts in the weeks after the 2020 election, it erects a series of legal roadblocks and presumptions that make it anyone’s guess whether Trump will ever face accountability under the indictment.
The court’s essential holding is that constitutional principles of separation of powers forbid the criminal prosecution of a former president for “official acts” that took place during his term, while allowing it for “unofficial” acts. The 6-3 decision broke down along familiar lines, with the conservative majority continuing its project of remaking the law and the structure of the federal government.
How to draw the line between official and unofficial conduct? The court provides several criteria that, albeit somewhat opaque, clearly protect swaths of conduct that would strike nearly everyone as corrupt and lawless — not least much of what Trump undertook after the 2020 election.
For starters, the court prescribes absolute immunity for any exercise of “core constitutional powers.” These include at a minimum the enumerated presidential powers of Article 2 of the Constitution, such as acting as commander in chief of the armed forces, issuing pardons and appointing judges. A president acting within these areas is untouchable.
Importantly, the court holds that this immunity precludes any consideration of motive. So a president who, for example, issues a pardon in return for a bribe or fires an executive branch official out of racial animus is just as protected from the law as one who takes such actions for appropriate and conventional reasons.
This could authorize some of the most vicious and problematic presidential conduct. There is no apparent reason, for example, that it doesn’t encompass what had been taken as a devastating hypothetical offered by Judge Florence Y. Pan of the U.S. Court of Appeals for the D.C. circuit: a president’s use of Navy SEALs to assassinate a political rival. If the reason for a president’s use of commander-in-chief powers is outside the bounds of inquiry, such conduct is indistinguishable from a conventional military mission.
Motive is the soul of the criminal law. It’s what divides conduct society accepts from conduct for which we put people in prison. The declaration that it has no role to play in determining a president’s criminal liability is nearly tantamount to making him a king.
Yet the court’s decision goes considerably further. It immunizes not just core constitutional functions but also any conduct within the outer perimeter of executive authority — the same capacious standard that already applies to civil lawsuits over presidential conduct.
And though there is some debate on this point, the court appears to go even further by imposing a presumption of immunity for conduct outside that perimeter unless the government shows that a prosecution would “pose no dangers of intrusion on the authority and functions of the Executive Branch.”
How this will play out in the Jan. 6 prosecution is to some extent for U.S. District Judge Tanya Chutkan to try to figure out, with Trump challenging every move she makes along the way. The court emphasizes that distinguishing “the President’s official actions from his unofficial ones can be difficult” and may necessitate a “fact-specific” inquiry into their context (not including the president’s motive).
But the court drops some very strong hints about which aspects of the prosecution are precluded. It essentially says that Trump’s alleged efforts to level false accusations of election fraud in Georgia with the aid of a Justice Department functionary are off-limits. That’s because the charge implicates the president’s official power to investigate and prosecute crimes.
The opinion also strongly suggests that the alleged plot to strong-arm Vice President Mike Pence into violating the Constitution may be protected because it pertains to the interactions of the executive branch’s top two officials.
And the court seems to want to give a pass to Trump’s incendiary rhetoric near the Capitol on Jan. 6 on the basis that communication with the public is part of what the president does.
The only aspect of the indictment that the court seems disposed to preserve is the alleged extensive effort to set up fraudulent slates of electors. Even there, however, the court prescribes a detailed inquiry that puts the burden on special counsel Jack Smith’s team to counter Trump’s argument that his conduct was official “because it was undertaken to ensure the integrity and proper administration of the federal election.”
Even if Trump loses the election and the case is allowed to proceed beyond this year, it will require more time-consuming legal combat. Every aspect of the application of the court’s opinion to the case could be appealed to the D.C. circuit and the Supreme Court.
And where does it all come from, this fundamental reordering of our tripartite system of government and the principle — to which the court continues to give lip service — that the president is not above the law?
The answer is no more than the court’s view that the president must be able to take bold and energetic action without worrying about subsequent criminal prosecution. The justices are not, strictly speaking, interpreting any provision of the Constitution but rather applying their notion of what makes for an effective president. The conservative majority is essentially grafting its political science principles onto constitutional structure and using them to drive a truck through the principle of equality before the law.
The majority dismisses the liberal dissenters’ insistence that the decision puts the president above the law as amounting to “ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the president ‘feels empowered to violate a federal criminal law.’ ”
But there is nothing fearmongering, unrealistic or extreme about those worries. They concern a reality that is right before the justices’ eyes. They have chosen to ignore it, ensuring that justice for the most serious assault on the Constitution in our history will be much delayed and largely denied.
Harry Litman is the host of the “Talking Feds” podcast and the “Talking San Diego” speaker series. @harrylitman
Politics
Trump administration touts ‘most secure border in history’ as 2.5 million migrants exit US
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The Department of Homeland Security (DHS) said Friday that more than 2.5 million illegal immigrants have left the United States since President Donald Trump returned to office this year, citing a sweeping immigration crackdown that it says led to the “most secure border in American history.”
In a year-end report highlighting the agency’s accomplishments, DHS claimed that illegal border crossings plunged 93% year-over-year, fentanyl trafficking was cut in half, and hundreds of thousands of criminal illegal immigrants were either arrested or deported, amounting to a dramatic shift from the Biden administration.
“In less than a year, President Trump has delivered some of the most historic and consequential achievements in presidential history—and this Administration is just getting started,” Homeland Security Secretary Kristi Noem said in a statement. “Under President Trump’s leadership, we are making America safe again and putting the American people first. In record-time we have secured the border, taken the fight to cartels, and arrested thousands upon thousands of criminal illegal aliens.”
EXCLUSIVE: MILLIONS OF ILLEGAL IMMIGRANTS LEAVE US IN RECORD-BREAKING YEAR UNDER TRUMP POLICIES, DHS SAYS
U.S. Secretary of Homeland Security Kristi Noem said Friday that President Donald Trump “has delivered some of the most historic and consequential achievements in presidential history” since he took office on Jan. 20. (Anna Moneymaker/Getty Images)
While Trump’s first year back in office was “historic,” the administration “won’t rest until the job is done,” Noem added.
Of the 2.5 million illegal immigrants that left the country since Trump took office on Jan. 20, an estimated 1.9 million self-deported and more than 622,000 were deported, according to DHS.
The Trump administration has encouraged anyone living in the United States illegally to return to their native countries using the Customs and Border Protection (CBP) Home Mobile App, which allows users to claim a complimentary plane ticket home and a $1,000 exit bonus upon their return.
BIDEN ADMIN MARKED ILLEGAL IMMIGRANT, ALLEGED MURDERER AS ‘NON-ENFORCEMENT PRIORITY,’ DHS REVEALS
United States Customs and Border Protection sent boats to the Chicago River amid “Operation Midway Blitz” on Thursday, Sept. 25, 2025. (Chicago Tribune/Getty Images)
CBP seized nearly 540,000 pounds of drugs this year, almost a 10% increase compared to the same time frame in 2024, DHS said, adding that the U.S. Coast Guard has retrieved roughly 470,000 pounds of cocaine, or enough to kill 177 million people.
Taxpayers have been saved more than $13 billion at DHS, the agency said, noting that several agencies, including the Federal Emergency Management Agency (FEMA), Cyber and Infrastructure Security Agency (CISA), and the Secret Service have returned “to their core missions.”
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Secretary of Homeland Security Kristi Noem touted the progress made during President Trump’s first year back in office. (Anna Moneymaker/Getty Images)
Secretary Noem awarded $10,000 bonuses earlier this year to TSA officers and personnel who displayed exemplary service, overcame hardships, and displayed the utmost patriotism during the 43-day government shutdown.
DHS touted the administration’s achievements, asserting that “countless lives have been saved” this year and “the American people have been put first again.”
Politics
Justice Department releases Epstein files, with redactions and omissions
WASHINGTON — The Justice Department released a library of files on Friday related to Jeffrey Epstein, partially complying with a new federal law compelling their release, while acknowledging that hundreds of thousands of files remain sealed.
The portal, on the department’s website, includes videos, photos and documents from the years-long investigation of the disgraced financier and convicted sex offender, who died in federal prison in 2019. But upon an initial survey of the files, several of the documents were heavily redacted, and much of the database was unsearchable, in spite of a provision of the new law requiring a more accessible system.
The Epstein Files Transparency Act, which passed with overwhelming bipartisan support in Congress, unequivocally required the department to release its full trove of files by midnight Friday, marking 30 days since passage.
But a top official said earlier Friday that the department would miss the legal deadline Friday to release all files, protracting a scandal that has come to plague the Trump administration. Hundreds of thousands more were still under review and would take weeks more to release, said Todd Blanche, the deputy attorney general.
“I expect that we’re going to release more documents over the next couple of weeks, so today several hundred thousand and then over the next couple weeks, I expect several hundred thousand more,” Blanche told Fox News on Friday.
The delay drew immediate condemnation from Democrats in key oversight roles.
Rep. Robert Garcia (D-Long Beach), the ranking member of the House Oversight Committee, and Rep. Jamie Raskin (D-Md.), the ranking member of the House Judiciary Committee, accused President Trump and his administration in a statement Friday of “violating federal law as they continue covering up the facts and the evidence about Jeffrey Epstein’s decades-long, billion-dollar, international sex trafficking ring,” and said they were “examining all legal options.”
The delay also drew criticism from some Republicans.
“My goodness, what is in the Epstein files?” Rep. Marjorie Taylor Greene (R-Ga.), who is leaving Congress next month, wrote on X. “Release all the files. It’s literally the law.”
“Time’s up. Release the files,” Rep. Thomas Massie (R-Ky.) wrote on X.
Already, congressional efforts to force the release of documents from the FBI’s investigations into Epstein have produced a trove of the disgraced financier’s emails and other records from his estate.
Some made reference to Trump and added to a long-evolving portrait of the social relationship that Epstein and Trump shared for years, before what Trump has described as a falling out.
In one email in early 2019, during Trump’s first term in the White House, Epstein wrote to author and journalist Michael Wolff that Trump “knew about the girls.”
In a 2011 email to Ghislaine Maxwell, who was later convicted of conspiring with Epstein to help him sexually abuse young girls, Epstein wrote, “I want you to realize that the dog that hasn’t barked is trump. [Victim] spent hours at my house with him … he has never once been mentioned.”
Maxwell responded: “I have been thinking about that…”
Trump has strongly denied any wrongdoing, and downplayed the importance of the files. He has also intermittently worked to block their release, even while suggesting publicly that he would not be opposed to it.
His administration’s resistance to releasing all of the FBI’s files, and fumbling with their reasons for withholding documents, was overcome only after Republican lawmakers broke off and joined Democrats in passing the transparency measure.
The resistance has also riled many in the president’s base, with their intrigue and anger over the files remaining stickier and harder to shake for Trump than any other political vulnerability.
It remained unclear Friday afternoon what additional revelations would come from the anticipated dump. Among the files that were released, extensive redactions were expected to shield victims, as well as references to individuals and entities that could be the subject of ongoing investigations or matters of national security.
That could include mentions of Trump, experts said, who was a private citizen over the course of his infamous friendship with Epstein through the mid-2000s.
Epstein was convicted in 2008 of procuring a child for prostitution in Florida, but served only 13 months in custody in what was considered a sweetheart plea deal that saved him a potential life sentence. He was charged in 2019 with sex trafficking, and died in federal custody at a Manhattan jail awaiting trial. Epstein was alleged to have abused over 200 women and girls.
Many of his victims argued in support of the release of documents, but administration officials have cited their privacy as a primary excuse for delaying the release — something Blanche reiterated Friday.
“There’s a lot of eyes looking at these and we want to make sure that when we do produce the materials we are producing, that we are protecting every single victim,” Blanche said, noting that Trump had signed the law just 30 days prior.
“And we have been working tirelessly since that day to make sure that we get every single document that we have within the Department of Justice, review it and get it to the American public,” he said.
Trump had lobbied aggressively against the Epstein Files Transparency Act, unsuccessfully pressuring House Republican lawmakers not to join a discharge petition that would force a vote on the matter over the wishes of House Speaker Mike Johnson (R-La.). He ultimately signed the bill into law after it passed both chambers with veto-proof majorities.
Rep. Ro Khanna (D-Fremont), who introduced the House bill requiring the release of the files, warned that the Justice Department under future administrations could pursue legal action against current officials who work to obstruct the release of any of the files, contravening the letter of the new law.
“Let me be very clear, we need a full release,” Khanna said. “Anyone who tampers with these documents, or conceals documents, or engages in excessive redaction, will be prosecuted because of obstruction of justice.”
Given Democrats’ desire to keep the issue alive politically, and the intense interest in the matter from voters on both ends of the political spectrum, the fact that the Justice Department failed to meet the Friday deadline in full was likely to stoke continued agitation for the documents’ release in coming days.
In their statement Friday, Garcia and Raskin hammered on Trump administration officials — including Atty. Gen. Pam Bondi — for allegedly interfering in the release of records.
“For months, Pam Bondi has denied survivors the transparency and accountability they have demanded and deserve and has defied the Oversight Committee’s subpoena,” they said. “The Department of Justice is now making clear it intends to defy Congress itself.”
Among other things, they called out the Justice Department’s decision to move Maxwell, who is serving a 20-year sentence for sex trafficking, to a minimum security prison after she met with Blanche in July.
“The survivors of this nightmare deserve justice, the co-conspirators must be held accountable, and the American people deserve complete transparency from DOJ,” Garcia and Raskin said.
Sen. Adam Schiff (D-Calif.), in response to Blanche saying all the files wouldn’t be released Friday, said the transparency act “is clear: while protecting survivors, ALL of these records are required to be released today. Not just some.”
“The Trump administration can’t move the goalposts,” Schiff wrote on X. “They’re cemented in law.”
Politics
Video: Kennedy Center Board Votes to Add Trump to Its Name
new video loaded: Kennedy Center Board Votes to Add Trump to Its Name
transcript
transcript
Kennedy Center Board Votes to Add Trump to Its Name
President Trump’s handpicked board of trustees announced that the John F. Kennedy Center for the Performing Arts would be renamed the Trump-Kennedy Center, a change that may need Congress’s approval.
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Reporter: “She just posted on X, your press secretary, [Karoline Leavitt,] that the board members of the Kennedy Center voted unanimously to rename it the Trump-Kennedy Center. What is your reaction to that?” “Well, I was honored by it. The board is a very distinguished board, most distinguished people in the country, and I was surprised by it. I was honored by it.” “Thank you very much, everybody. And I’ll tell you what: the Trump-Kennedy Center, I mean —” [laughs] “Kennedy Center — I’m sorry. I’m sorry.” [cheers] “Wow, this is terribly embarrassing.” “They don’t have the power to do it. Only Congress can rename the Kennedy Center. How does that actually help the American people, who’ve already been convinced that Donald Trump is not focused on making their life better? The whole thing is extraordinary.”
By Axel Boada
December 19, 2025
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