In 1920, the perennial Socialist Party candidate Eugene V. Debs ran for president of the United States while serving time in a federal prison for delivering a seditious speech. He received nearly a million votes. His sentence was commuted by his erstwhile rival, the newly elected Republican Warren G. Harding, two days before Christmas in 1921.
No one expected Debs to actually win the White House. His best showing was in 1912, when he captured nearly 6 percent of the popular vote (but no presidential electors). So the nation has never had to seriously grapple with the possibility of someone winning the presidency while behind bars.
It might be time to think more seriously about that contingency. The Donald Trump years have brought many strange constitutional hypotheticals to life, and Trump promises more to come if he has a second term, recently demanding, for example, the courts must recognize “COMPLETE & TOTAL PRESIDENTIAL IMMUNITY” 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.
Trump 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.
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.
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.
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.
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.
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—at least until he moves out of the White House.
Whether or not a president-elect is behind bars in the weeks after the election, what might we expect to happen?
1. A Pre-Inauguration Pardon
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.
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.”
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.
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.
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.
2. An Impeachment
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.
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.
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.
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.
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.
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.
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.
3. A Post-Inauguration Disability
The 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.
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.”
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.
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.
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.
4. A Post-Inauguration Self-Pardon
Alternatively, a newly inaugurated Trump could dispense with the complications of the 25th Amendment and instead simply issue a pardon to himself for his federal crimes. This would be a legally risky strategy. There are good reasons for thinking that a self-pardon would not be constitutionally valid.
The director of the Federal Bureau of Prisons could presumably be persuaded to take the president’s word for the validity of his self-pardon and see to his release. He would likely need a pliant attorney general and Office of Legal Counsel in place to provide legal cover, which would necessitate waiting until such officers could be appointed.
The validity of a self-pardon would undoubtedly be litigated. Trump would no doubt be able to wait out the litigation from the White House rather than from a prison cell. But with such a novel and difficult constitutional question, it is far from certain how the courts would resolve such a case. Ultimately, the question would have to be resolved by the Supreme Court.
If Trump had issued a self-pardon in his first term of office, it seems entirely plausible that the justices might have ruled it out of bounds. As a practical matter, though, Trump would back the Court into a difficult corner if he launched his second term of office with a self-pardon. In that situation, the justices would understand that declaring the pardon invalid would create an immediate constitutional crisis over whether the president would voluntarily return to prison. Faced with such high stakes, a majority of the justices might be willing to swallow their doubts and uphold Trump’s self-pardon.
5. A Trump Resignation
There is always the possibility that an incarcerated Trump could recognize that he should decline to serve as president for the good of the country. He could declare his intentions before Inauguration Day or be sworn in and then immediately resign. In either case, the duly elected vice president would become the president.
Such a prison-house conversion seems extremely unlikely.
As long as we’re reaching, there are two more scenarios that are at least possible. They are even more far-fetched than the resignation, but this is Trump that we’re talking about. Who can say that he might not prefer the unexpected?
6. A Prison Presidency
We’ve all seen TV shows where an incarcerated mob boss keeps pulling the strings of his criminal organization from his jail cell. Trump is sometimes likened to a mob boss. Perhaps he would enjoy the drama and spectacle of being the leader of the free world from a customized and lavishly appointed wing of a penitentiary. State and federal officials might be willing to make such accommodations, even if they are not willing to simply let Trump go. If he can’t go to the White House, then he can make White House operations come to him. He could meet with foreign dignitaries and congressional leaders in the prison yard. His chief of staff could set up shop in the cell next door to Trump’s own. Donny from Queens could become The Kingpin.
7. A Presidential Prison Break
These are all legalistic scenarios, even if the legal strategies are sometimes a stretch. But why be limited by mere legalities? Trump likes to toy with raw power.
If he were confined in a federal prison on Inauguration Day, President Trump could simply order any and all necessary executive officers to release him from his cage. If some of those officers were not sufficiently pliant to his demands, he could remove and replace them with more accommodating substitutes. Trump might not bother to supply those officers with even the legal fig leaf of a self-pardon. He could simply order them to act and promise to pardon them if there are any legal consequences for their escorting him out of prison.
Trump would be daring Congress or the courts to stop him. But maybe the lesson he took away from his first term of office was that he could win such a dare.
If he were confined to a state prison on Inauguration Day, President Trump could not just issue orders to his jailers. Things would have to be done the hard way. Trump might expect the U.S. military to rescue the commander in chief from his imprisonment and overawe or overwhelm any resistance it might encounter in doing so. The military would perhaps be unwilling to obey such orders, but that would not necessarily deter him from trying to find a sufficient pocket of loyalists in the federal ranks who would be willing to storm a state prison complex on the president’s orders.
The events of January 6, 2021, demonstrated that at least some Trump supporters were willing to riot on his behalf. It is unclear whether he still commands that level of passion, but perhaps there are those who would be willing to take up arms if he were to call out to them. Rather than imagining themselves as American patriots circa 1776, they would instead have to imagine themselves as French revolutionaries circa 1789 as they stormed their American Bastille. Whether taking to the streets to prevent Trump from being taken into custody in the first place or mustering outside the prison gates in an attempt to break him out, they would have no need to wait until Inauguration Day to liberate their hero.
Trump once bragged, “I can tell you I have the support of the police, the support of the military, the support of the Bikers for Trump—I have the tough people, but they don’t play it tough—until they go to a certain point, and then it would be very bad, very bad.” Very, very bad indeed
What If a Candidate or President-Elect Is Incapacitated?
We are on the path to nominating two presidential candidates well over the age of 75. From an actuarial perspective, this seems unwise.
If a newly inaugurated president were to suffer a major medical event in the moments after being sworn into office, the path forward would at least be clear: The 25th Amendment would kick into gear. If the president were to die, the vice president would become president and would select a new vice president to be confirmed by the Senate. If the president were to be left severely impaired but alive, the president could voluntarily and temporarily turn over his duties to the vice president. If he were unable to do so voluntarily, the vice president and a majority of the members of the Cabinet could vote to temporarily take the powers from him.
If a president-elect were to die before being sworn into office, the 20th Amendment specifies that the vice president–elect would be sworn in as president in his stead. If the president-elect were alive but unable to take the oath of office, the situation is not so clear, but most likely the vice president–elect would be sworn in, perhaps as acting president, and immediately begin to exercise the powers of the office.
Of course, the next American president will not truly be elected until the Electoral College casts its ballots on December 17, 2024. Once the electors have voted, their choice is locked in. If the nominal president-elect were to shuffle off this mortal coil before the electors meet, they could have a relatively free hand to choose someone else, but they most likely would be expected to choose the successful presidential running mate. (In 1872, one of the candidates did in fact die after Election Day and before the Electoral College met. He had lost the contest, so the question of who would get his votes was academic; the electors split their ballots among several figures, with three attempting to cast votes for the corpse.)
If a presidential candidate were to die shortly before the general election on November 5, 2024, his name would remain on the ballot and voters pulling that lever would in reality be choosing a slate of that candidate’s presidential electors. If something were to happen to a candidate after the nominating convention but before ballots are printed and early voting begins? Well, then things get complicated, depending on each political party’s own rules.
Essentially, if the Republican presidential nomination unexpectedly became vacant, the Republican National Committee would fill the slot using voting rules comparable to those of the national convention. If Biden were to vacate the nomination for any reason before early voting began, the Democratic National Committee would vote for a new presidential nominee.
The post Commander in Chains: 7 Scenarios If Trump Is Jailed and Wins the Election appeared first on Reason.com.
