It is impossible to know exactly how many crimes Donald Trump has committed. Even setting aside the ones we don’t know about, setting aside those committed before he became president, during his first term, or while out of office – even counting only those crimes he and his administration have committed in plain sight is a colossal task.
On top of the plainly illegal foreign and domestic actions, there’s endless pay-to-play corruption. Political contributions or donations to projects like the White House ballroom have been given in brazen exchange for benefits such as government contracts, favourable policies, specific tariff relief and presidential access.
Of course, there has to be some kind of consequence for all of this, right? After this administration is done, assuming there is a free and fair election, assuming a Democrat wins, there will be a reckoning. Right? Right?
Ugh. OK. This is not going to be a comfortable read. Here’s the problem.
Trump has been prosecuted a bunch of times before, some of them successful. In May 2024 he was convicted on 34 counts of falsifying business records to cover up his hush money payments to porn star Stormy Daniels, which makes him officially the first felon to serve as president.
There were other prosecutions going on at the time, too, though, and it’s what happened in one of them that carries the real gut-punch.
In August 2023, Trump was indicted by a grand jury following an investigation led by special counsel Jack Smith on charges of conspiracy to overturn the results of the 2020 election. In July 2024, that case – Trump v. United States – reached the Supreme Court. And in a six to three decision, the Supreme Court ruled that former presidents cannot be prosecuted for acts relating to the powers of their office – “all official acts”.
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That decision “basically changed the whole landscape,” Jon Sale tells me. Sale is a former prosecutor who served for years as an assistant US attorney for the Southern District of New York and District of Connecticut. Even more pertinently, he was assistant special prosecutor on the Watergate case against president Richard Nixon – the former president who famously once said that “when the president does it, that means it is not illegal.”
That may not have been true then. But it seems like it is now. “Three justices, they basically wrote that this puts a president above the law,” Sale says. “And it probably does.” The majority of the Supreme Court, when it speaks, “is the law of the land.” Even though the opinion specifies only “official acts”, the burden is on prosecutors to prove there was no crossover whatsoever with presidential duties. And in practice how, when you’re talking about a president, could you ever do that?
One Supreme Court justice disagreed with this presidential impunity, and her dissenting verdict is a truly savage read. Justice Sotomayor wrote that the decision “makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law.”
“When he uses his official powers in any way,” Sotomayor continued, “under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
“In every use of official power,” she wrote, “the President is now a king.”
Prosecutions can still be brought. No-one would stop a new administration’s Department of Justice filing indictments against Trump. But they would likely be dismissed. There is still that distinction between official and personal acts, and it is not impossible that a prosecutor could find, somewhere in the cornucopia of crimes, something the courts might allow as entirely personal, totally separated from the official business of the presidency.
But finding one – even imagining one – and then taking it all the way up would be extremely, extremely difficult. And it would eventually land… back at the Supreme Court.
The ruling effectively covers the members of Trump’s government too. “So someone like the secretary of defense would have to be indicted, and then he would move to dismiss, alleging the Supreme Court decision,” Sale says. “The prosecutor would say, ‘No, no, no, it only applies to the former president.’ And he would argue, ‘Yes, but I was only following his order.’ You know, this is not Nuremberg. This is following an order of a duly elected president, and then a court would have to decide.”
International law could be a different animal. “There,” Sale says, “all bets are off.” The International Criminal Court in the Hague has already charged Benjamin Netanyahu with genocide, for example – there is an Interpol red notice out for the Israeli prime minister’s arrest.
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“There are two kinds of cases that really jump out,” says Alex Whiting, a professor at Harvard Law School who not only served as a US federal prosecutor but was also head of investigation and specialist prosecutor in the Kosovo office at the ICC. “The first is the blowing up of these boats. The drug boats, right? And then the second is the crime of aggression, the attacks on Venezuela and Iran.”
The boat attacks, Whiting says, “could be considered a crime against humanity, because it’s an attack on a civilian population.” This question particularly interests Whiting. “What’s so fascinating and not really much discussed is that this tracks almost exactly the case against Rodrigo Duterte,” the former president of the Philippines. “He’s being prosecuted at the International Criminal Court for crimes against humanity, and the charges have just been confirmed for extrajudicial killings of drug dealers, and it’s exactly the same playbook.”
But there’s a massive problem here too. Neither the crimes of aggression nor the crimes against humanity could be prosecuted at the Hague because the US is not a signatory to the ICC and never has been. You may recall, in fact, previous American wars in recent history that might well have been investigated by the ICC, but were not.
The UN Security Council does have authority to refer any case to the Hague. It has done so twice in history – Sudan, and Libya. But the US has a veto on the Security Council, and while an administration could theoretically choose not to deploy that veto, “it is very hard to imagine that it could be politically viable for a US president to agree to a prosecution of a US national at the ICC,” Whiting says, “and it might even be unlawful under the American Servicemembers’ Protection Act, which generally prohibits cooperation with the ICC.”
There could be a new court. This May, a new special tribunal set up by the EU will prosecute Vladimir Putin, in absentia, for the invasion of Ukraine. And for an American president? That’s vanishingly unlikely, and of course it still wouldn’t have the jurisdiction to enact any punishment. So we’re back where we started.
When it comes to prosecuting members of Trump’s inner circle, the situation is just as bleak because the president gets to issue executive clemency whenever he wants – the pardon power. And Trump has already issued a gobsmacking number of these. In his first term, he pardoned 237 people. So far in his second term he has pardoned more than 1,600 people, including a blanket pardon of pretty much everyone involved in the January 6th attack on the Capitol. Even corporations can be pardoned, a move Trump made for the first time in US history in 2025 with the cryptocurrency exchange BitMEX.
And it is, obviously, overwhelmingly likely that before his administration ends Trump will pardon… pretty much everyone. Everyone still in favour, that is – he’ll leave some people high and dry, of course, but that will be cold comfort. And a pardon means total, pretty much iron-clad immunity. It is an “ absolute unreviewable power,” for federal prosecution, Sale says. Biden also issued a pre-emptive pardon for members of his family before he left office, Sale is careful to point out.
That does only cover federal crimes, however. “A pardon wouldn’t cover any alleged state crimes,” Whiting says. And if the allegations applied to private business conduct, it is less likely, though still not impossible, that the “public authority” defence – ie just following orders – would work. “The case would not be barred,” Whiting says, “there just might be some defenses that could still come into play.”
I’m aware this is perhaps a little depressing, but the situation isn’t entirely hopeless. There are things a new administration could attempt, if it was sufficiently motivated. Some, like the Democrat senator Elizabeth Warren, have called for the Supreme Court to be reformed or even expanded, which would change the balance of power and likely lead to Trump v. United States being overturned (along with other recent outrageous rulings) which would reopen the door for prosecution.
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Another way around immunity is by bringing prosecutions for crimes committed before Trump assumed office or between his two terms. That has a different problem: most fraud and bribery-related crimes, for example, have a five-year statute of limitations. But that could change – a group of Democratic senators are right now introducing legislation that would extend the time limit on bribery charges to ten years.
Other types of crime have much longer time limits. A new administration with full access to the Epstein files? Who knows. Just speculating here, but there could well be things in there with – well, let’s just say with considerably longer statutes of limitation.
In the meantime, Congress could remove Trump through impeachment (or under the 25th amendment as “unable” to continue). Not possible with the current makeup of Congress but there are elections coming up in November which could feasibly change the balance of power enough to make it viable. That’s assuming the Democrats don’t just melt down and start infighting the second they get the majority. If there is a landslide, the Dems will need great leadership if they’re going to get impeachment through – and the current options are a mixed bag.
Impeachment would remove him from office, and that’s clearly a more pressing issue – but Trump would still be immune from prosecution afterward.
Ultimately, there will probably be no trial of Donald Trump. But who knows – maybe that’s for the best. Satisfying though it would be, a trial could also be a martyrdom and would further radicalise whatever’s left of his base. It would take years. And what punishment could it really impose? I’ve written before for this magazine about the president’s already ailing health. It’s hard to see a judge sentencing a former president in his 80s to hard time. And he’ll just keep saying it’s all a “witch hunt”.
There will be gaps in whatever layers of pardon protection he throws over his inner circle. If he’s pardoned a corporation that bribed him, then you can tariff or regulate them out of existence. If you can’t criminally prosecute his cronies, set the IRS on them instead. Just spitballing here.
But the real route to retribution with Trump himself is actually much simpler. And that is: strip his name from every building. Clean his face from every wall. Rip down every banner. Melt every coin. Tear down his ballroom. Demolish his arch. Reverse every policy. Expunge everything he did, and raze to the ground anything he could possibly call a legacy.
And then, instead of spending political capital tilting at legal windmills, use it to make real changes to the United States and its government and its laws to ensure nothing like this will ever, can ever, happen again.
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