The Republican-appointed Supreme Court justices last year famously immunized President Donald Trump against criminal prosecution for his official actions. But the ruling did not extend the same protection to the people who work for him in government.

The Republican-appointed Supreme Court justices last yearfamously immunized President Donald Trumpagainst criminal prosecution for his official actions. But the ruling did not extend the same protection to the people who work for him in government.

That distinction is now spurring more Trump critics to raise the prospect that other top officials in his administration couldsomeday face legal liability, including possible criminal charges, for some of their most questionable moves.

Both Democratic leaders and small-d democracy advocates are pointing to actions that a future administration might scrutinize for potential criminal violations, such as boat strikes in the Caribbean and immigration raids in Chicago.

While the Supreme Court has protected Trump, others participating in his decisions “don’t have immunity,” House Democratic Leader Hakeem Jeffries pointedlysaid this fall. “And the reality is the statute of limitations is five years and there will be accountability with the next administration, if not before.”

But even discussing the possibility of future accountability for Trump aides and advisers is deeply controversial among its critics.

Some worry it could backfire in the 2026 midterm elections, both by distracting from a key message of affordability and by helping Trump to energize his base — the way he did with his own indictments before the 2024 race. Others counter that raising the prospect of eventual criminal liability represents the best hope of restraining the behavior of Trump officials now.

Trump, of course, could render this debate moot by issuing sweeping pardons for people in his administration before he leaves office, presumably in January 2029. But Ezra Levin, co-founder of the liberal activist group Indivisible, said that even if such a move precluded actual prosecutions, pressuring Trump into that step would crystallize valuable debates. “Make him do it and then allow the public to decide whether they should support a regime that is guarding its foot soldiers from accountability for unconstitutional and illegal acts,” Levin said. Besides, he added, “if you refuse to engage with Trump for fear he might play that card, you’ve already lost.”

From the first hours of his second term, Trump has tested the limits of his legal authority on virtually every front. One consequence has beendozens of federal court decisionsconcluding that the administration’s actions have violated specific statutes or bedrock Constitutional rights.

Norm Eisen, co-founder of the Democracy Defenders Fund and a former White House ethics counsel for President Barack Obama, said those proliferating court decisions rebuking the administration — many from Republican-appointed judges — show that the nation is experiencing an “epidemic of illegality” without precedent.

“There’s never been anything like it,” Eisen said. “The question that will need to be answered is: How often in that vast field of misconduct has the line of criminality been crossed, and by whom?”

As Eisen suggests, the discussion of whether administration officials have potentially violated criminal statutes is only beginning. Critics have focused preliminary attention on several possibilities. These includethe deportation of undocumented immigrants despite court orders blocking such actions;possible Privacy Act violations in sharing mortgage records of Trump critics with the Department of Justice; andthe extensive granting of pardonstopetitioners with financial or political ties to the president.

While the Supreme Court has ruled that Trump cannot be prosecuted for the administration’s moves, Eisen points out that the same might not hold for others involved in these actions, such as the pardon decisions. If it can be demonstrated that anyone received a pardon because of favors they promised Trump, others involved in advancing that decision “would be potentially liable,” Eisen told me.

In an interview, Rep. Robert Garcia, the ranking Democrat on the House Oversight and Government Reform Committee, told me that “at the center of our work when we win the majority is going to be taking on corruption and ensuring that we have a government that is fair, that is following the Constitution.” With court cases and journalistic exposés pointing toward “likely criminal activity happening across the government,” he said, “it’s important for us to document it.”

The White House did not respond to a request for comment about the growing discussion among Democrats and democracy advocates about the possibility of future criminal exposure for actions the administration is undertaking today.

The conversation about potential future legal liability for Trump officials has advanced the furthest on two fronts. One is the militarized enforcement sweeps by the Immigration and Customs Enforcement agency and other federal officials.Through an executive order this fall, Democratic Gov. J.B. Pritzker of Illinois established an Illinois Accountability Commission to “create a public record, including through public hearings, to document the conduct of federal officers” during the raids. Beyond making policy recommendations, Pritzker instructed the commission, which is due to report in January, to refer “potential violations of law” to appropriate agencies.

“The tables will turn one day,”Pritzker said during the raids. “These people should recognize that maybe they’re not gonna get prosecuted today, although we’re looking at doing that, but they may get prosecuted after the Trump administration because the statute of limitations would not have run out.”

Even more discussion has centered on the administration’songoing campaign of military strikes against alleged drug smugglers at sea. The administration has staunchly defended the legality of the program, but,despite requests from Democrats, it has not released the memo from the Justice Department Office of Legal Counsel that provides its legal justification for the strikes.

Some critics of the campaign,such as Democratic Sen. Mark Kelly of Arizona, have suggested the attacks — in particularthe “double tap” strikeon those who survived an initial boat strike on September 2 — may constitute war crimes under international law.

Others maintain that it is implausible to claim the US is legally at war with drug traffickers and that as a result, federal criminal law applies. “This is murder and this is an officially sanctioned campaign to engage in murder,” said Tess Bridgeman, co-editor-in-chief of theJust Security websiteand a former deputy counsel to the National Security Council under Obama. Trump “has put everyone in the chain of command below him in (legal) jeopardy by making this choice,” she said.

Asked whether the next president should seek criminal prosecutions against those involved in the campaign, Bridgeman didn’t hesitate. “Yes, and it should start at the top and not the bottom,” she told me. “Those who are most culpable are those giving the orders, not those who are put in the position of having to refuse the orders.”

How, or even whether, to hold former officials accountable has tested societies around the world trying to restore democratic norms after replacing governments that eroded the rule of law. The question of the most effective form of accountability for law-breaking governments – at times called “transitional justice” – has drawn extensive academic study, but no consensus.

“What you are describing is a classic dilemma of transitional justice to which there is no one recognized correct answer,” said David Pozen, a professor at Columbia Law School. “It’s very hard to say in advance that this is the right approach or the wrong approach.”

The question of whether to seek accountability for former officials is often described as the choice between “peace vs. justice,” said Eric Wiebelhaus-Brahm, a professor of public administration at SUNY-Binghamton who has written extensively on these issues. Renouncing accountability is usually portrayed as promoting social peace in polarized societies, but at the cost of denying justice to those harmed by a prior government’s actions.

In a 2020 report, the group Protect Democracy, which focuses on authoritarian threats to the American constitutional system, catalogued some of the costs and benefits of each approach. “The highest-level takeaway is that after officials at all levels of government committed abuses of power — whether they be technically legal or not — there are no great options,” said Grant Tudor, one of the report’s co-authors. “And one of the traps that we tend to get into in the US context is that we are looking for the path which is costless, which is just silly.”

Almost any efforts to impose accountability on prior governments, the authors concluded in the report, “are messy, expensive, and time-consuming” while “risking a deepening of political cynicism” and converting “the accused into martyrs.” But, the report continued, “history also reveals that the costs of not addressing serious transgressions can be even steeper.” In particular, the authors warned, not seeking accountability can foster “a sense of impunity” among office holders that encourages future violations.

Recent US experience offers plenty of evidence for both sides of the accountability debate. Bridgeman, for instance, argued thatthe Obama administration’s decisionnotto prosecuteofficials involved in the torture program of suspected terrorists under George W. Bush encouraged the military to follow Trump’s demands in the boat strikes. “The lack of accountability for torture put us on this path,” she said.

In effect, Bridgeman continued, the Obama administration bowed to the argument that any attempt to impose accountability on its predecessors would be seen as “settling scores with political enemies.” As long as future administrations fear taking actions that can be portrayed that way, she added, “no one at the most senior levels of our government can ever be held accountable.”

But whileObama’s choices on torture may illustrate the risks ofnotseeking accountability, many believe the multiple indictments of Trump under President Joe Biden underscore the dangers of pursuing it. Biden’s Justice Department hesitated about probing Trump’s actions in trying to overturn the 2020 election and then began an investigation so late that Trump was able to run out the clock with legal challenges — while benefiting from a backlash against the indictments among his base. Now Trump’s supporters cite his indictments to justifyhis own pursuit of cases— however flimsy the evidence — against his political adversaries.

“I think it’s fair to argue with the benefit of hindsight that (under Biden) we got the worst of both worlds,” Pozen said. “An effort to go after Trump that was widely perceived by his supporters as persecution, (but) that wasn’t pursued with enough vigor and urgency to get a final result in time.”

To those who favor aggressive action, the lesson of that experience is not for a future administration to abandon accountability, but to advance it more quickly and comprehensively.

Levin, whose group Indivisible has been a lead organizer ofthe “No Kings” marches, said Democratic lawmakers should clearly signal their intent to probe potential lawbreaking when they next retake Congress or the White House. “The way authoritarians consolidate power is by convincing everyone around them that they are going to stay in power and the smart move is to fall in line behind them,” he said. “And you’ve got to break that bubble.”

Pozen likewise believes raising the specter of future prosecution might discourage law-breaking today. But he said that any future administration would need to insulate any prosecutions against the inevitable charge that they are politically motivated, perhapsby adopting a recent proposal from two law professorsto empower a bipartisan panel of former US attorneys to review any indictments of prior administrations. “We need to do something to credibly convey this is not just partisan retribution,” Pozen said.

By contrast, Wiebelhaus-Brahm thinks the Biden-era experience should make Democrats think twice before suggesting future criminal or other legal accountability for Trump administration actions. “Given the lack of success on those attempts at accountability, I would think there would be significant reluctance to want to try again,” he said, citing the risk that Trump could once more “present himself as a martyr who was unfairly attacked.”

Simon Bazelon, the principal authorof a much-discussed recent reporturging Democrats to target their messaging on economic issues, likewise considers it misguided for the party to emphasize future legal liability for Trump actions.

“A big part of why we’re in the place we’re in politically is that the people who make up the professional class of Democratic politics just have very different priorities from the average voter,” said Bazelon, an adviser at the centrist Democratic group Welcome.

“The things that emotionally resonate with them most are things like the boat strikes, masked ICE agents in the streets, and threats to the rule of law. But … working-class voters are focused on their own economic well-being, first and foremost,” Bazelon said. As a result, he added, “a big part of the question facing Democrats is: Am I going to privilege the issues that resonate most with me personally, or am I going to focus most on the issues that resonate with the average American?”

The one exception to that rule, Bazelon said, is the allegations of personal corruption against Trump, which he believes can be easily tied to an economic message asserting that the president has further enriched himself and his wealthy allies while ignoring the affordability squeeze on average families.

Tudor, a policy advocate at Protect Democracy, acknowledges all the pitfalls in pursuing accountability. But he says failing to seek consequences for possible law-breaking is still the worst option. “By turning the blind eye and in effect validating the abuses, you are giving license for them to happen again and probably more egregiously,” he said.

Arguably, that cycle is already evident in Trump’s second term, with the president and his aides pressing much harder against legal boundaries than they did during his first. Without a credible threat of eventual consequences for others around him — if not for Trump himself — there may be few constraints on how aggressively the administration will test those limits.