Could a second-term President Donald Trump pardon himself in a state prosecution? The answer might lie in a titanic debate regarding commitments to federalism vs. the Constitution’s Supremacy clause.
The Next Donald Trump Showdown?
When Donald Trump was president, we became used to hearing talking heads gasp about how everything was “unprecedented.” Those who knew even an inkling about politics knew practically every official act he took as president had plenty of precedent.
Even challenging the outcome of a presidential election had occurred multiple times before. The challenge led to the horrible Capitol riot. But even the riot – while a tragedy – wasn’t really unprecedented since the Capitol was attacked in 1954 and 1971 with guns and bombs. Still, it was that riot that led to two of the four unprecedented indictments against a former president.
Two indictments, a federal case in Washington and the Georgia case, are about Trump’s challenge to the election outcome. This wouldn’t have risen to the level of a criminal prosecution without the backdrop of the riot, even though Trump is not charged for the riot in either indictment. Then there is a federal indictment in the classified documents case and the New York indictment for paying hush money to adult star Stormy Daniels.
In nearly every poll against President Joe Biden, Trump is in a dead heat and, in some cases, is leading. In fact, he never polled that well in pre-election polls when he won in 2016. So, of course, he could win the 2024 election.
The Legal Question
The conventional wisdom has been that New York and Georgia state prosecutions are a bigger threat if Trump is president. The reason is federalism. No one seems to dispute that if Trump is elected president, he can pardon himself for any federal charge. It gets a lot stickier when we are talking about state charges.
The starting point is the Constitution, where Article II, Section 2, Clause 1 says, “The president… shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
On its face, that seems to imply we are only dealing with a federal case. We know that New York Democratic Gov. Kathy Hochul would never pardon Trump. Georgia’s Republican Gov. Brian Kemp can’t. Georgia pardons are determined by a five-member pardon and parole board.
However, when we are talking about the president of the United States and the functioning of the federal executive branch, this might be a notable exception.
U.S. Department of Justice guidelines prohibit prosecuting an incumbent president, but there are no such restraints on local prosecutors. So, as a practical matter, going forward, every local county prosecutor of one party would start charging the president of another party with crimes if they could find even a vague jurisdictional connection. That could lead to chaos. Still, that alone might not be legal grounds for granting a president such self-clemency power.
What the Experts Say
But some legal experts contend it’s an open question.
Mark Levin is a pro-Trump pundit and author – a legal scholar who certainly knows the Constitution well – made a compelling argument that a president would have this authority. The Justice Department’s guidelines recommend against prosecution because it would upend the executive branch.
“Given the DOJ’s position, and the Supremacy Clause in the Constitution, I would argue strongly that the idea that a president cannot be indicted at the federal level because it would cripple the executive branch, but can be indicted by local DAs, would have exactly the same effect as a federal indictment, except there are thousands of local and state prosecutors making the crippling of a president even more likely,” Levin tweeted.
“FURTHERMORE, if indicted and even convicted, the idea that a president cannot pardon himself from state charges is absurd, again, not only because of the Supremacy Clause, but the same considerations that apply to a federal conviction would obviously apply to a state conviction,” added Levin, a former chief of staff of Attorney General Edwin Meese and former deputy solicitor for the Interior Department in the Reagan administration.
Although Jonathan Turley, a law professor at George Washington University, thought it unlikely a president’s power extends to a self-pardon for state charges, he thought federal courts would have determine the impact on the executive branch.
“President Trump could indeed pardon himself for federal crimes. For the state crimes, it could create some serious complications. The court would first have to sentence him into jail,” Turley said in a Fox News interview. “But then federal courts may get involved to the extent that that would interfere with presidential functions. We obviously have not been down that road but we must look towards it and it’s going to be a messy situation. The courts are going to have to deal with it.”
What Could Happen
Let’s digress for a moment to say Trump doesn’t get elected and the convictions are upheld. What’s almost certain is that Trump probably won’t spend time in the slammer even if he’s convicted in any of the four cases, as much as his enemies would clamor for such a spectacle. As a former president, there is no way to keep him safe unless a Secret Service agent is his bunkmate in a cell. So, we’re likely talking house arrest with an ankle bracelet. House arrest at Mar-a-Lago or Bedminster doesn’t seem all that bad.
But if prison is a factor, anti-Trump hostility runs so deep that prosecutors will likely fight over which jail gets to incarcerate the 45th president.
That brings us back to if he does win the presidency as a convicted felon. House arrest could probably apply to the White House. Given he’d be the most secure individual in the country, an ankle bracelet wouldn’t likely be necessary for other than gratuitous reasons.
We keep hearing Trump’s core base thinks the prosecutions are political, but by golly, swing voters in a general election will be shaken to the core by this conduct. At least so far though, polling says the public isn’t fazed by the mounting indictments. The public may be convinced he’s guilty of something but are so certain the charges are political, they don’t care. Maybe that changes with the label of convicted felon. But maybe it doesn’t. Which is why a general election victory–even a popular vote victory over Biden–looks very plausible at this point.
What happens after that will almost certainly be decided by the Supreme Court.
Barbara Joanna Lucas is a writer and researcher in Northern Virginia. She has been a healthcare professional, political blogger, is a proud dog mom, and news junkie.
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