Donald Trump is facing a number of legal challenges. But the indictment in Fulton County, Georgia, may be the biggest threat to his presidential campaign — and, if he wins reelection, his ability to serve as president.
That’s because as president of the United States, Trump might be able to pardon himself if he’s convicted of one or more federal crimes. But a president has no power to pardon himself if convicted of a state crime.
Trump faces two federal criminal indictments under Special Counsel Jack Smith and a state criminal indictment in New York County from Manhattan District Attorney Alvin Bragg. Most analysts consider Bragg’s criminal charges a stretch and unlikely to lead to a conviction. On the other hand, Smith’s federal criminal charges against Trump are serious and may lead to one or more convictions, which could land the former president in jail.
If Trump were sentenced to jail time for federal crimes and then won the 2024 presidential election, either before or after the conviction, he would likely try to issue himself a pardon.
Could Trump legally do that? No one knows for sure. No president has ever pardoned himself. But then, no president has ever needed to.
Trump opined during his first term in office that he could pardon himself, if necessary, but legal experts are mixed. The Bookings Institution’s Norman Eisen says that a president cannot pardon himself, and he cites a Nixon-era Department of Justice study backing him up. But other legal experts think the Constitution’s Pardon Clause is broad and unlimited, except in cases of impeachment, which the Constitution prohibits. At the very least, a self-pardon would be challenged and end up before the Supreme Court.
But another legal shoe just dropped yesterday: a criminal indictment from Fulton County District Attorney Fani Willis alleging Trump tried to overturn the results of the 2020 election in Georgia.
If Trump is convicted and sentenced to jail in Georgia, and if that conviction and sentencing were to come before the November 2024 election, he could continue his campaign for president, even if from jail. There have been a small number of presidential candidates who ran for the White House while locked up in the Big House.
But if Trump were convicted and sentenced to jail in Georgia, he couldn’t pardon himself of a state crime, which means he couldn’t “discharge his duties” as president. That’s when the country would have to turn to the Constitution’s 25th Amendment.
The 25th Amendment provides a blueprint for what to do if a president “is unable to discharge the powers and duties of his office” because of a health issue, or if he should die while in office. In either case, the vice president and “a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide,” can initiate a process that makes the vice president the acting president.
If a newly elected president were sitting in jail on a state-based criminal conviction, he would not be able to “discharge the powers and duties of his office.” For example, he would need a secure place to hold classified briefings and view top secret documents. He would need a place to receive foreign dignitaries, etc. It is simply impossible for any president to do the job from jail.
And so the newly elected vice president would need to initiate the 25th Amendment process.
Of course, it’s also possible that, if convicted and sentenced to jail, the state of Georgia might allow Trump to postpone his sentence until he either loses the election, or, were he to win, until he left office. It’s possible, but I suspect highly unlikely.
It is bizarre that we are having to even consider all of these heretofore unimaginable possibilities. But we need to, because Trump’s determination to run again, and his significant polling lead over the other GOP candidates, makes possible some impossible scenarios.
Given President Joe Biden’s age and widely recognized health issues, and given Trump’s many legal challenges, it may be more likely than ever that a vice president will have to complete the next president’s term in office.
Biden has apparently already made his choice. Republicans should hope that, if Trump does win the Republican nomination, he chooses a better running mate than Biden did.
Merrill Matthews is a resident scholar with the Institute for Policy Innovation in Dallas, Texas. Follow him on Twitter @MerrillMatthews.