COMPLETE & TOTAL PRESIDENTIAL IMMUNITY<\/a>” from all criminal acts that he might commit during a term of office. The 2024 elections promise more possibilities even before we get to serious third party candidacies or faithless electors.<\/p>\nTrump has not yet been outfitted with an orange jumpsuit, but stranger things have happened. The former president is now defending himself against four separate criminal indictments. The wheels of justice turn slowly, and these cases are unusually complicated. Moreover, Trump has an incentive to throw up as many procedural obstacles as possible with an expectation (an expectation that has not been legally tested) that all pending prosecutions will be put on hold if he were to return to the White House.<\/p>\n
It is a decent bet that none of his criminal trials will reach a conclusion before November. But there is a genuine possibility that one or more of his trials could reach a verdict by Election Day. No doubt some of these prosecutions were brought with the hope of knocking Trump off the ballot, or at least damaging his candidacy, and some resemble more of a political Hail Mary than an ordinary criminal prosecution, but Trump faces a serious risk of conviction in at least some of them.<\/p>\n
To briefly review, Trump is charged with election interference in New York, with a conspiracy to steal the 2020 election in Georgia, with mishandling national security documents and obstruction of justice in Florida, and with defrauding the federal government and obstructing a government proceeding in Washington, D.C. The first two of those cases were brought in state courts under state law by state prosecutors, and the other two were brought in federal courts under federal law by Department of Justice special counsel Jack Smith.<\/p>\n
Of course, even if he were found guilty of a criminal charge in one or more of those cases, Trump could be expected to file appeals to those convictions. He would likely be released pending his appeals, which further reduces the likelihood that he would be serving a criminal sentence at the time of the election or even Inauguration Day.<\/p>\n
There is nothing in the Constitution that prevents a current inmate of a state or federal penitentiary from running for or winning the presidency. Unsurprisingly, the constitutional framers did not anticipate the possibility that the American electorate might make such a choice, and so did not think to account for the possibility. Thus, we must now consider what would happen were Trump to be both criminally convicted and elected president.<\/p>\n
If Trump is cooling his heels in the big house when Inauguration Day arrives, he could simply be sworn in as president in his prison cell. The presidential oath can be taken wherever the presidential designate happens to be at the time of his ascension to the office. Nothing says the president cannot be a convict, though the Department of Justice has insisted (when this was a live question under Nixon and Clinton) that a sitting president cannot be prosecuted. Joe Biden will stay out of prison\u2014at least until he moves out of the White House.<\/p>\n
Whether or not a president-elect is behind bars in the weeks after the election, what might we expect to happen?<\/p>\n
1. A Pre-Inauguration Pardon<\/h2>\n
The most likely scenario might be that Trump would receive a pardon, or at least a commutation of his sentence, before Inauguration Day. The prospect of a president being sworn into office while behind bars is such a national embarrassment and potential constitutional crisis that responsible government officials may decide it necessary to spare the nation that particular nightmare.<\/p>\n
When President Gerald Ford issued a pardon to former President Richard Nixon in September 1974, he explained: “My conscience tells me clearly and certainly that I cannot prolong the bad dreams that continue to reopen a chapter that is closed. My conscience tells me that only I, as president, have the constitutional power to firmly shut and seal this book. My conscience tells me it is my duty, not merely to proclaim domestic tranquility but to use every means that I have to ensure it.”<\/p>\n
As expected, the pardon damaged Ford’s hopes of winning the presidency in his own right, but he believed the self-sacrifice was worth it to restore some normalcy after the Watergate scandal. The political costs to anyone pardoning Trump are also likely to be severe, but the national benefit of not inaugurating an inmate is arguably greater than that of turning the page on Nixon.<\/p>\n
Trump’s criminal liability is more complicated than was Nixon’s. President Joe Biden could pardon Trump of his alleged federal crimes currently being prosecuted by Jack Smith. Biden’s authority in regard to those crimes is plenary, but it expires at noon on Inauguration Day if he doesn’t win in November. If Biden were to act at all, it would seem wise to do so shortly after the election rather than letting the situation draw out.<\/p>\n
But Biden has no power to pardon Trump for his alleged state crimes. Georgia’s Republican governor, Brian Kemp, does not have the authority to pardon Trump of any convictions that Fulton County District Attorney Fani T. Willis might win: The Georgia Constitution vests the pardon power in the State Board of Pardons and Paroles, which is composed of five members, all of whom were appointed by Republican governors. The board may not grant a pardon until a criminal sentence has been completed (or innocence has been proven), but it can commute a sentence when “such action would be in the best interests of society and the inmate.” By contrast, New York Gov. Kathy Hochul, a Democrat, may grant reprieves, commutations, and pardons if Trump is convicted in the prosecution brought by Manhattan District Attorney Alvin Bragg.<\/p>\n
2. An Impeachment<\/h2>\n
Perhaps the least likely scenario is that Congress rises to the challenge of what to do about an individual elected to serve as president who is currently an inmate. The House could adopt articles of impeachment holding that the crimes for which Trump had been convicted in state or federal court also qualified as high crimes and misdemeanors. The Senate could then try Trump on those articles of impeachment, with a conviction resulting in Trump’s removal from office. Since Republicans currently control the House, it seems unlikely they would take this step. Even if they did, conviction in the Senate would hardly be assured. There are serious constitutional challenges to this path, which would undoubtedly increase the difficulty of persuading a necessary number of legislators to follow along.<\/p>\n
First, the federal charges arising from Trump’s actions in Mar-a-Lago involve his conduct when he was out of office. Whether a federal officer can be impeached for out-of-office misbehavior is constitutionally unsettled, at best.<\/p>\n
Second, the other three prosecutions all involve Trump’s conduct while still serving as president, but the Senate has already demonstrated that it is skittish about the prospect of convicting a former officer for misconduct while in office.<\/p>\n
Third, the House has never impeached a private individual before he assumed a federal office. A pre-inauguration impeachment would require that the House be willing to take that unprecedented step and overcome the constitutional objections that would necessarily arise.<\/p>\n
Fourth, it is not at all clear that the Senate can preemptively bar an individual from assuming office. The Constitution specifies that a sitting officer “shall be removed” upon conviction, but there can be no removal if Trump has not yet been inaugurated. The Senate can follow a conviction by disqualifying an individual from holding future federal office. The Senate has worked on the assumption that it can disqualify someone convicted in an impeachment by a subsequent simple-majority vote. This approach might make disqualification easier to win in the punishment phase, but it would also likely make conviction more difficult.<\/p>\n
Congress could minimize some of these constitutional and political concerns by waiting to impeach and convict until after Trump is inaugurated. The newly elected House of Representatives will be sworn in on January 3, 2025, more than two weeks before Inauguration Day. A newly elected Democratic majority could move swiftly ahead with an impeachment of President-elect Trump as soon as the 119th Congress is convened. (Impeachment would presumably be a nonstarter if Trump’s electoral coattails bring a Republican House majority.) If it so chose, the Senate could hold off on taking a vote to convict in an impeachment trial until the moment after Trump takes his oath of office. Immediately upon conviction, Trump would be removed from his new office.<\/p>\n
Alternatively, the House could wait until Trump was sworn in to vote on articles of impeachment. Delaying the proceedings might avoid some constitutional questions about impeaching individuals before they take office, but it would still not avoid the problem of impeaching an individual for actions that took place before he assumed his current office.<\/p>\n
3. <\/strong>A Post-Inauguration Disability<\/h2>\nThe 25th Amendment is being recognized more and more. Adopted in the wake of President John F. Kennedy’s assassination, the amendment provides for the possibility of a still-living president unable to perform the duties of his office. Section 4 of the amendment has been much discussed of late, since it allows the Cabinet to involuntarily strip the president of his powers. There is essentially no chance that a Trump-appointed Cabinet would invoke Section 4 under these circumstances.<\/p>\n
Section 3 has been the most used provision of the amendment, and it provides for the possibility that the president might voluntarily transmit to the leaders of Congress “his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.”<\/p>\n
Presidents have used Section 3 when, for example, they expect to be under anesthesia. President Ronald Reagan somewhat reluctantly invoked this provision before undergoing surgery in 1985. President George W. Bush invoked it twice while he underwent colonoscopies. In 1988, a distinguished commission recommended that presidents put plans in place for invoking Section 3 in a variety of medical situations that would render the president temporarily unable to perform his duties.<\/p>\n
Neither the Constitution nor practice has clarified what might render a president “unable to discharge the powers and duties of his office.” Nothing prevents a newly inaugurated Trump from determining that his imprisonment constitutes such an incapacity necessitating he designate his vice president as acting president. As acting president, the vice president could immediately issue a pardon of Trump for any federal crimes. Trump, thus relieved of his criminal punishment, could then inform Congress that he is resuming his presidential duties and fly the coop aboard Marine One within minutes of his swearing in.<\/p>\n
Of course, the pardon of an acting president could not reach punishments for state crimes. If Trump finds himself in a state prison in Georgia or New York on Inauguration Day, the 25th Amendment gambit will not work. It is, however, the safest way for Trump to receive a valid presidential pardon after his inauguration.<\/p>\n