Donald Trump has notoriously become the only former US president to face a criminal indictment - much less four. Opinions on the prosecutions, predictably, break along partisan lines.
But whether one subscribes to the Trump as victim or villain narratives, the high-stakes charges raise profound legal and political questions. Here’s what’s at stake.
Can a president be indicted?
The US constitution doesn’t prohibit the criminal prosecution of a current president, and supreme court precedent (in United States v Nixon) makes it clear that the executive is not above the law. However, since 1973, the Department of Justice (DOJ) has maintained a policy (reaffirmed in 2000) against prosecuting an incumbent on the grounds of not undermining the capacity of the office.
Congress possesses the ability to impeach federal officials for crimes of treason, bribery, and "other high crimes and misdemeanors" and remove them from office. Impeachment - unlike an indictment - is primarily a political process, not a legal one. It’s designed to hold presidents accountable for grievous breaches of power, but it happens outside the jurisdiction of the courts.
No similar DOJ restrictions exist on indicting a former president. Nixon v Fitzgerald holds that the president enjoys immunity from civil liabilities related to the duties of office (as do members of Congress). But this does not apply to criminal indictments. Still, because precedent on the question is limited, expect Trump to make a case for executive immunity.
Should a current presidential candidate face indictment?
Trump’s run for the White House again in 2024 complicates the legal terrain. The DOJ has a longstanding norm of avoiding politically sensitive indictments near election cycles (typically, within 60 to 90 days of Americans casting their ballots). It’s one reason why US attorney general Merrick Garland sought to avoid a Trump indictment in the run-up to the 2022 midterm elections.
As expected, Trump and his GOP allies have framed the DOJ’s prosecutions as "election interference" and an effort to knock out current US president Joe Biden’s most likely opponent next year. They’ve similarly criticised the indictments for trying to distract from the legal woes of the president’s son Hunter Biden, who now faces a DOJ special counsel investigation of his own.
Garland tried to mitigate concerns of politicisation by delegating to special counsel, Jack Smith, the decision on whether to indict Trump. However, because Smith technically reports to Garland, and the DOJ sits within the executive branch, it’s impossible to avoid the appearance of partisanship. For his part, Biden has shied away from discussing Trump’s cases publicly.
DOJ guidelines hold that prosecutions should serve the public interest. Considerations include the gravity of the alleged offenses, the level of culpability, potential deterrent effects, likely consequences of a conviction, and any unique circumstances.
In addition to arguing that Trump’s indictments are politically motivated, Republicans voice concerns that they will further divide the country.
The DOJ (and New York and Georgia prosecutors) have held that their indictments serve the public interest of maintaining the rule of law and protecting the integrity of US institutions. Yet sceptics suggest that this is essentially tautological. The public interest caveat becomes moot if any prosecution can be linked back to a "law-and-order" justification.
Can an indicted or convicted candidate run for president?
Neither the constitution nor US legal precedent prevents a candidate from running for office due to an indictment - or a conviction. Candidates can even run (though not vote in most states) while incarcerated. In 1920, socialist Eugene Debs infamously received nearly one million votes - about 3% of the popular vote at the time - when he ran for president while in jail.
Some states outlaw convicted felons from running for office, but these statutes only apply to state and local positions, not federal. Running a campaign or serving as president from jail would pose untold challenges, but it’s not prohibited. An indictment alone can’t disqualify a politician from being elected because all defendants are "innocent until proven guilty".
Some legal analysts contend that Trump should be ineligible for the presidency due to section three of the 14th amendment, which prohibits anyone who has "engaged in insurrection of rebellion" or "given aid or comfort to the enemies thereof" from holding public office again.
But the election interference charges against Trump don’t align exactly with insurrection. If convicted, disqualification would be subject to extensive debate.
Can presidents self-pardon?
Timelines for Trump’s trials remain unclear, and possibly more delays and appeals are ahead. Deference goes to the defendant in criminal cases, even if government lawyers prefer speedier trials. If prosecutions are still ongoing, and if Trump is elected, he could dismiss the federal cases (though not the state-level cases) because he will control the DOJ.
The question of a self-pardon is trickier. A president has no pardoning power of any kind over state-level convictions. But the constitution does not expressly forbid a self-pardon at the federal level, although many legal scholars believe that it would violate the precept of "not being the judge in your own case". The DOJ argued prior to Richard Nixon’s resignation that a president could not self-pardon, but the memo is an opinion only and not law.
At least some of Trump’s current Republican presidential primary opponents, most vocally Vivek Ramaswamy, would consider a pardon if elected. Various commentators have made the case that Biden, if re-elected, should do the same. In 1974, then president Gerald Ford pardoned Nixon, which was controversial at the time but largely respected in hindsight. A pardon of Trump, by a Democrat or a Republican, would doubtlessly prove even more fraught.
By all current polls, 2024 is likely to see either Trump or Biden re-elected. But whoever wins may be a pyrrhic victory unless the US is able to restore faith - from both parties - in elections and rule of law.
This article was first published in The Conversation on 18 September 2023.
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