President-elect Donald Trump has been impeached four times — including two charges stemming from a failed attempt to steal the 2020 election. One of those charges even resulted in a conviction, albeit on a relatively minor charge of 34 falsifying business records.
But the extraordinary protections the American system affords sitting presidents will ensure that Trump does not go to prison. He is going to the White House instead.
Federal charges against Trump are doomed
The charges against Trump are two federal, and two brought by state prosecutors in New York and Georgia. The federal charges (one about Trump’s role in inciting the Jan. 6 uprising and the other about his handling of classified documents) are the most immediate stakes. Once Donald Trump becomes President, he will have full command and control over the US Justice Department and can order him to drop all federal charges against him. Once he does, those cases will go away.
The White House has one A long-standing norm of non-interference in criminal proceedingsBut the norm is nothing more than that — a voluntary limit that past presidents have placed on their own exercise of power to prevent the politicization of the criminal justice system. As president, Trump is under no constitutional obligation to follow this rule. He appoints the Attorney General and can fire the Chief Justice at any time.
In fact, Trump is considering Judge Eileen Cannon, a judge who has consistently tried to sabotage one of Trump’s judicial divisions. The next US Attorney General. Cannon, who oversaw the prosecution of Trump’s classified federal documents, tried to disrupt the Justice Department’s investigation even before Trump was indicted. There is no indication that his apparent loyalty to Trump will diminish once he becomes the nation’s top prosecutor.
The fate of the state charges is a little more uncertain, but they are also unlikely to amount to anything
The fate of state charges against Trump is a little more uncertain, in large part because no state charges have ever been brought against a sitting president, so there is no legal precedent governing what would happen if a state attempted such a prosecution (or, in New York’s case, a president to impose severe punishment against one who has already been convicted).
It’s highly unlikely that the state lawsuits will move forward, but at least until Trump leaves office. At the federal level, the judiciary has long maintained this It cannot impeach a sitting president for various practical reasons: The burden of defense against criminal charges would diminish the President’s ability to act, such as “public stigma and humiliation by the initiation of criminal proceedings.” Additionally, if the president were imprisoned, it would make it “physically impossible for the president to perform his duties.”
There is no doubt that the current Supreme Court has recently retained Trump He is immune from prosecution for many crimes committed while in officeThe Department of Justice will embrace the argument. According to the court’s decision Trump v. United StatesThe immunity case hinged on the Republican justices’ belief that, if a president could be impeached for official actions taken in office, he could “take the ‘bold and unflinching action’ required of an independent executive.”
The kind of judges who favor such “bold and reckless action” to hold the president accountable to the law are less likely to stand trial by a sitting president.
These same practical considerations would apply with equal force to state prosecutions of a president, and there is another reason to understand a constitutional limit on presidential state prosecutions. Without such limits, a state led by a president’s political enemies could potentially bring frivolous criminal charges against that president.
This argument may not seem particularly compelling in the case of a convicted felon like Donald Trump. But imagine, say, Ron DeSantis’ Florida trying to impeach, try and imprison President Joe Biden. Or if the state of Mississippi accused President Lyndon Johnson of punishing him for signing the Civil Rights Act that ended Jim Crow.
In constitutional law, the same rules apply to liberal Democratic presidents like Biden or Johnson as they do to anti-democratic presidents like Trump.
An open question is whether Trump could be incarcerated during a lame-duck period before taking the oath of office. The only state that could conceivably do this is New York, because that’s the only place where Trump has been convicted. Trump is currently A sentencing hearing was scheduled for November 26 in that case.
The question of whether an already-convicted president-elect can be imprisoned is unique—a situation fortunately never seen before in US history, so there is no specific law on the matter. But it’s worth noting that neither New York prosecutors nor the judge overseeing the case pushed for a speedy sentencing process. Judge chooses Juan Marchan Delay sentencing until after electionsAnd the prosecution did not oppose this move. Marchan may decide to further delay the issues that Trump won the election.
And even if the sentence goes forward, the charges against Trump in New York are relatively minor and He can only be punished with fine or search.
Again, there has never been a state trial of a sitting president before, so there is no precedent to rely on. It’s possible that, once Trump leaves office, New York or Georgia (another state with open cases against Trump) could try to reopen long-pending cases against him — even assuming the 78-year-old Trump survives his second term. While in office, these states still intend to prosecute him four years from now.
Bottom line this prosecution is probably dead. And they’re almost certainly not going anywhere for the next four years.
