Donald Trump on Thursday begged Special Counsel Jack Smith to drop "all litigation" against him in order to allow the nation to "heal."
The former president has been charged by Smith in connection with the ex-president's alleged election subversion efforts, as well as for purportedly holding onto classified documents despite a subpoena from the government to return them.
"If Special Counsel Jack Smith wants to do good for our Country, and help to unify it, he should drop all Litigation against Joe Biden’s Political Opponent, ME, and let our Country HEAL," Trump posted on his own social media site, Truth Social.
"This would be a far bigger and better achievement than anything he has ever done, and will be easy for the Great Patriots of our Country to understand in light of Special Counsel Robert Hur’s Document Report on Joe Biden, where the evidence is overwhelming that he 'willfully retained' important documents!"
The Hur report has been criticized for calling into question Biden's memory.
With President Joe Biden getting a criminal hall pass, former President Donald Trump’s ex-lawyer in the federal classified documents case locked horns with CNN’s Jake Tapper over a critical detail: they may both be pack rats, but one president allegedly obstructed and the other didn’t.
“For just as Joe Biden should have returned the documents the moment he's telling his ghost writer, ‘Hey, I found the classified stuff downstairs!’ so, too, would Trump have had to do it,” said Timothy Parlatore, who defended the 45th president after a federal grand jury in Miami in June 2023 decided to indict him for stashing away classified documents from the White House to Mar-a-Lago and then rebuffing the government’s request to return them.
On Thursday, Special Counsel Robert Hur decided to not bring criminal charges against President Joe Biden for knowingly keeping classified documents.
Parlatore claims Biden had the benefit of “seeing what Trump did” so he could avoid making the same moves.
Tapper pressed Parlatore about the fact that his former client stands accused of intentionally trying to keep the files and lying about them when formally approached by the feds.
But Parlatore says Trump was packing up in haste after losing a bid for s second term in what he called “a very chaotic time” whereas Biden “it appears intentionally took these things with him."
Tapper interjected, “Because he thought he could even though he was wrong.”
Then Parlatore acknowledged that each played different legal cards despite holding similar hands.
“And that's the difference is that he took them, whereas Donald Trump, it's more about what did he do once he found them,” said Parlatore.
Parlatore added that Jack Smith and his team have been “making significant distinctions with the alleged obstruction.”
Parlatore added “It's the allegation, it's not proven yet, but those allegations certainly do make it appear much more you know, damning on the one side.”
House Republicans were quick to push out anti-Joe Biden talking points after the special counsel released a report exonerating the president.
The Republican special counsel was a Donald Trump appointee held over from his administration. He was given the job to remove even an appearance of impropriety.
But after the special counsel characterized Biden as a doddering, old fool who could never be convicted, House Republicans proclaimed on social media that no person should be in the Oval Office if they can't manage classified documents.
It's a problem because the leading Republican candidate for president, Trump, is being prosecuted for stealing documents from the White House and refusing to return them even after being subpoenaed.
“A man too incapable of being held accountable for mishandling classified information is certainly unfit for the Oval Office," the House Republicans sent out en masse on social media.
An account identifying the person as a "retired nurse" pointed out the number of times Donald Trump used the phrase "I don't recall" in the statement he gave to special counsel Robert Mueller in the Russia probe. The questionnaire was mocked at the time as the "take-home test" because the questions were given to him to have his lawyers fill out for him.
Shelley Kersey replied to Speaker Mike Johnson (R-LA), saying, "Just change President Biden to Donald Trump, and you might finally have a solid argument. Making this ridiculous argument while Trump had to have documents physically taken back shows you don't deserve your position and you're just a Trump lackey."
"Sorry lady. Donald Trump WASN’T president when he took those top secret documents. He lost the election then STOLE the documents on his way out. Then refused to give them back when caught. The real question should be what was he planning to do with them. He’s a danger to the USA," Joie Arraro replied to conservative Jeanine Pirro.
The House Republicans weren't the only ones drawing ridicule. Special counsel Robert Hur did as well for some glaring errors in his report.
National security expert Marcy Wheeler went into detail about the report in a thread on the social media site "X." Among the things she points out is the special counsel's own confusion about the laws around documents.
"If a former VP writes something based on memory that is classified onto a notecard after he leaves Naval Observatory, what does the law say? Because Hur is REALLY squirrely here about timing and it's not in [the] list," she said.
President Biden's attorney, Bob Bauer, put out a statement accusing the special counsel of making things up. Wheeler noted this is a problem, because on page 86 in the "work reflections" section, she says that Hur's footnote seems to be made up.
The Justice Department special counsel’s Thursday report where it declined to charge President Joe Biden for mishandling classified information included some unflattering descriptions of Biden memory, and now Republicans are likely to use that report to argue he's unfit for the presidency, Politico reported.
The report, prepared by Special Counsel Robert Hur, found evidence that Biden “willfully retained and disclosed classified materials after his vice presidency,” but didn’t “establish Mr. Biden’s guilt beyond a reasonable doubt.”
Republicans seized on the report's contention that Biden is "a sympathetic, well-meaning, elderly man with a poor memory."
“Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt," the report stated. "It would be difficult to convince a jury that they should convict him — by then a former president well into his eighties — of a serious felony that requires a mental state of willfulness.”
Hur pointed to Biden’s 2017 conversations with ghostwriter Mark Zwonitzer, which the Special Counsel described as “painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries.”
“In his interview with our office, Mr. Biden’s memory was worse,” Hur wrote.
Unsurprisingly, Republicans highlighted the report's comments on Biden's memory.
“If you’re too senile to stand trial, then you’re too senile to be president. Joe Biden is unfit to lead this nation,” Alex Pfeiffer, communications director for the pro-Trump super PAC Make America Great Again Inc., said in a statement.
"Damn dude this is madness. I thought [White House reporter Matt Viser] was joking, but no -- the Department of Justice actually concluded that Biden was too old and feebleminded to commit a crime," X user @jarvis_best wrote in a post.
"So Joe Biden is old & cognitively impaired (8 yrs ago) according to special prosecutor Hur, that’s why he won’t be charged for leaving classified documents all over the place," wrote Donald Trump Jr. "However, he’s still 100% ok to lead the free world & hold the nuclear football! Totally makes sense!"
But according to Bloomberg columnist Matthew Yglesias, the Special Counsel's commentary in the report was "f***ing bullsh**."
"You appoint a Republican special counsel to investigate. He investigates. His investigation does not reveal a crime. So instead of saying 'all good!' he goes off and does partisan political hits?" Yglesias wrote. The damaging hit on Biden comes in the context of speculating that Biden would offer 'I’m too old and my memory is bad' as a defense at trial. But of course he wouldn’t! He’s the president of the United States! Bring the case if you have the evidence."
Legal commentator Bradley P. Moss said that the more he thinks about the report, "the more annoyed I am with how poorly written this thing is."
"He got the legal conclusion right, let me be clear. But his analysis is totally wrong. Proving Biden's intent would in no way hinge on Biden's memory (Biden wouldn't testify anyway)," Moss wrote.
Political commentator Joe Walsh's analysis had a slightly more centrist take.
"All three are true: 1. The Special Counsel went out of his way to emphasize & attack Biden’s memory and age. 2. Everyone on social media will overreact to and get super partisan with this report. 2. Biden’s age IS an issue, a BIG issue, and ONLY Biden can address it & diffuse it. Only Biden. And he MUST do that if he wants to win." he wrote Thursday.
A special counsel investigating President Joe Biden used part of his report to Congress to explain why Donald Trump should be prosecuted for mishandling classified documents.
In declining to prosecute Biden, Special counsel Robert Hur told Congress that the president had willfully retained classified documents, according to NBC News. But Hur said he was declining to charge Biden because of "clear" differences with Trump's classified documents case.
Hur observed that unlike "the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts."
"After being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite," Hur wrote before comparing it to Biden's case.
"Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview, and in other ways cooperated with the investigation."
A long list of Democrats — as well as Never Trump conservatives like The Bulwark's Charlie Sykes, the Washington Post's Max Boot and former GOP strategist Tim Miller — have been warning that if Donald Trump wins the 2024 GOP presidential primary and defeats Democratic incumbent President Joe Biden in the general election, he will carry out a decidedly authoritarian agenda. And Trump, they warn, will be better able to do it than before because he will make a point of installing an army of unquestioning loyalists in the United States' federal government.
But history professor/author Nancy MacLean, in an article published by The New Republic on Feb. 8, argues that Democrats need to do a lot more than bash Trump in their defense of U.S. democracy. They also need to show voters that the "radical right" in general is a threat to democratic values.
"Lurking behind the full-frontal assault by Donald Trump and his enablers lies a more far-reaching threat," MacLean warns. "If the Republicans gain control of both Houses of Congress, expect a state-authorized constitutional convention to eviscerate core rights and protections most Americans hold dear. Imagine living in a country without Social Security, Medicare, the Affordable Care Act, the right to organize a union, civil rights enforcement, and clean air and water protections — let alone action to stop climate collapse."
According to the historian, Democrats should be "alerting every voter to what is in store for them if the radical right succeeds in its endgame to enchain American democracy."
"That's big talk, 115 years," MacLean comments. "Think it can't be done? Although the convention push has been all but ignored by the commentariat and national Democratic leaders, it has powerhouse backing. The Koch network and other dark-money donors are generously funding it. The corporation-underwritten American Legislative Exchange Council (ALEC) has supplied 'model legislation' and training to Republican state legislators. Endorsers include Mark Meadows, Ron DeSantis, Greg Abbott, Sean Hannity, and many more."
MacLean adds that "the only way to permanently entrench minority rule by plutocrats and theocrats" is to "encase it in a dramatically altered Constitution."
"But this is madness, you will say," MacLean writes. "These reactionaries could never get away with rewriting the Constitution! Except they could…. For the American people to realize how much is at stake will require vast and to-the-point popular education."
Read Nancy MacLean's full New Republic article at this link.
The 91-year-old Colorado Republican who challenged former President Donald Trump's eligibility to be on the state's primary ballot referenced the existential threat to democracy and invoked Nazi Germany's Adolf Hitler when explaining why she got involved in the case that came before the U.S. Supreme Court for oral arguments on Thursday.
"You have to remember, as old as I am, I was born in the Great Depression," Norma Anderson, who previously led the Colorado Senate and House of Representatives, told NPR. "I lived through World War II. I remember Hitler."
"I remember my cousin was with [then-U.S. President Dwight] Eisenhower when they opened up the concentration camps," Anderson continued. "I mean, I understand protecting democracy."
Recalling when she watched on her home television as Trump's supporters stormed the U.S. Capitol on January 6, 2021, she added, "They're trying to overthrow the government is what I was thinking."
Backed by the watchdog Citizens for Responsibility and Ethics in Washington (CREW), Anderson in September joined five other GOP and Indepedent Colorado voters in filing a lawsuit to keep Trump off the state's ballot, citing the 14th Amendment to the U.S. Constitution.
Section 3 of the 14th Amendment bars anyone who has taken an oath to support the Constitution "as an officer of the United States" and then "engaged in insurrection" from holding any civil or military office, unless two-thirds of each chamber of Congress votes to allow them to do so.
The Colorado Supreme Court disqualified the Republican presidential front-runner from the state's primary ballot in December, agreeing with the voters that Trump's efforts to overturn his 2020 loss that culminated in the Capitol attack during the certification of the election results amounted to engaging in insurrection.
The U.S. Supreme Court agreed to hear the case last month, at the urging of both the Colorado voters and Trump. The court has a right-wing supermajority that includes three Trump appointees—Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—plus Justice Clarence Thomas, whose activist wife Ginni Thomas was involved with the GOP's 2020 election interference effort. None of them recused.
"On the merits, this is an open-and-shut case," Take Back the Court Action Fund president Sarah Lipton-Lubet said in a Thursday statement about Trump v. Anderson. "The 14th Amendment plainly states that insurrectionists are barred from holding office."
"Of course, the Republicans on the Supreme Court have shown they have no problem ignoring the obvious meaning of laws that conflict with their party's political interests," she added. "Donald Trump anticipated a moment like this one when he installed his right-wing supermajority. He thinks that these are his justices, on the court to do his bidding. Soon, we'll see if—and to what degree—he's right."
Common Cause was among various groups that submitted an amicus brief to the high court in support of removing the twice-impeached former president from the ballot.
"American democracy has never meant unchecked mob rule," Colorado Common Cause executive director Aly Belknap said Thursday. "Donald Trump sent an armed mob to the Capitol in an attempt to overturn the results of an election."
"His ongoing incitement has led to an unprecedented rise in attacks and death threats against election workers, judges, and other public servants," Belknap asserted. "There must be consequences for political violence—the Supreme Court must hold the former president accountable to the people and to the Constitution."
The presidential primary season is already underway. Trump has won the GOP's Iowa caucuses and New Hampshire primary by significant margins, setting him up to face Democratic President Joe Biden in November, unless he is barred from the contest.
The case before the country's highest court is "of extraordinary importance to our democracy," Campaign Legal Center senior vice president Paul Smith stressed Thursday. "It is vital that, one way or another, the court returns a clear ruling as quickly as possible to avoid any potential confusion in the upcoming presidential election. However the court decides, election officials deserve time to properly prepare for the upcoming election, and voters deserve time to make an informed decision."
Several arguments made in the case offer the Supreme Court an opportunity to defer the dispute to a different branch of government, said Derek T. Muller, a law professor at the University of Notre Dame who focuses on election law.
"All of them are ways for the court to shift responsibility to another branch and to say, 'We're not going to deal with it now,'" Muller said. "And it leaves open questions for resolution, or maybe indeterminacy, in the weeks and months ahead."
During arguments, Slate legal writer Mark Joseph Stern said on social media that questions from Chief Justice John Roberts as well as Kavanaugh and Thomas "suggest to me that a consensus off-ramp is emerging: the notion that individual states cannot enforce Section 3's disqualification provision against federal candidates, or at least against the president."
"The problem is that Jonathan Mitchell's atrocious briefing and argument failed to put meat on the bones of this idea, so SCOTUS will have to improvise a justification," Stern added, referring to the Trump attorney who argued the case.
Justice Elena Kagan, one of the court's three liberals, also expressed "deep skepticism that a single state should be able to decide who can 'be president,'" he noted. "In my view this argument is as good as over. A majority will hold that individual states can't enforce Section 3 against the president, at least without congressional approval."
Currently, Republicans have a slim majority in the U.S. House of Representatives, while Democrats narrowly control the Senate, though the November elections could change that.
While voters and groups in several other states have launched similar legal battles to disqualify Trump, the only other successful one so far was in Maine, where Secretary of State Shenna Bellows, a Democrat, cited statute and the evidence of Trump's conduct to determine his name should not be on the ballot. Trump appealed the Maine disqualification, but a state judge in January deferred a decision in the case, citing the looming Supreme Court ruling.
"People from across the political spectrum and from all walks of life—from former members of Congress to constitutional scholars to everyday Americans—have come together in this exceptional and fragile moment in the history of American democracy to reinforce the Constitution's very purpose in safeguarding our democracy from insurrectionists," CREW president Noah Bookbinder said in a statement after the hearing.
Anderson, also weighing in post-arguments, said that "we stand here today not just as voters, but as defenders of the principles that define our democracy."
"Our fight to uphold the integrity of our electoral process is not about partisan politics; it's about preserving the very ideals for which our forefathers fought," she added. "Donald Trump's actions on January 6th stand in direct opposition to those sacred ideals and today, we stand before the Supreme Court seeking justice to ensure that no one, regardless of their party or popularity, is above accountability."
Democratic operatives are telling Semafor that their Republican opponents this week have given them plenty of fodder to use in campaigns later this year with a series of votes that failed on the floor of the House of Representatives.
The operatives say that this week's events, which saw Republicans fail in their own campaign to impeach Homeland Security Secretary Alejandro Mayorkas, will help them portray the GOP as the party of chaos that can't even get its own partisan agenda passed, let alone hammer out negotiations on a bipartisan basis.
“We’ve had a good week because Republicans have shot themselves in the foot,” a Biden campaign aide explained to the publication. “There’s a lot for us to work with, and we’re going to be able to highlight Joe Biden focusing on issues that matter for voters while Republicans are not.”
Democratic operative Kate Berner, meanwhile, told Semafor that this week shows "Donald Trump and congressional Republicans and the MAGA Republican Party can’t govern or deliver results for the American people."
A Trump spokesperson offered a profane response to Democrats and told Semafor that "their record has been s----y at best."
Only a few dozen people, lawyers and court staff included, were on hand in the Denver City and County Building’s Courtroom 209 when a five-day trial in a case known as Anderson v. Griswold began on a cold morning in late October.
Just outside the courtroom, footsteps echoed in the otherwise quiet halls of Denver’s city hall as Jason Miller, a veteran spokesperson for former President Donald Trump, denounced the case as an attempt at “election interference” by a “far-left wacko group.”
A month earlier, six Colorado voters, backed by the nonprofit Citizens for Responsibility and Ethics in Washington, had
sued Trump and Colorado Secretary of State Jena Griswold in state court, alleging that the Republican presidential frontrunner’s actions in relation to the Jan. 6 attack on the U.S. Capitol disqualify him from office under the 14th Amendment to the U.S. Constitution. Section 3 of the Amendment, ratified in 1868 and enforced in only a handful of cases in the last 150 years, prohibits a person who took an oath to support the Constitution and then “engaged in insurrection” from holding office again.
The plaintiffs sought a court order on Trump’s ballot eligibility under a procedure in Colorado election law typically used to adjudicate disputes over candidate residency requirements or irregularities in party nominating assemblies. Griswold, a Democrat and outspoken Trump critic, took no formal position on the matter, inviting the courts to weigh in first. Local news stations called the lawsuit a “
long shot.”
Fielding questions from reporters ahead of the trial, Miller dismissed the plaintiffs, four of whom are registered Republicans, as “Republicans in name only.” He suggested — highly implausibly, based on recent election results in
increasingly blue Colorado — that Democrats had brought the 14th Amendment challenge in the Centennial State out of fear that Trump could put the state in play in the 2024 election.
“Joe Biden and his billionaire Democratic donors … they go to a Democratic jurisdiction, they try to find themselves a Democrat judge, they try to cause chaos,” Miller said. “Democrats don’t actually have an intention of winning this case.”
Within two months, however, Trump’s legal team would suffer a historic defeat in the Colorado case — not at the hands of a district court judge in liberal Denver, but before the justices of the Colorado Supreme Court. A 4-3 majority of the court sent shockwaves through American politics when it
issued a Dec. 19 decision holding that Trump was ineligible for office under Section 3, and ordering Griswold not to certify his candidacy for the state’s March 5 primary ballot.
The lawsuit’s fast-tracked ascent through the American legal system
will reach its apex Thursday, when the U.S. Supreme Court, which promptly granted Trump’s appeal of the Colorado decision last month, hears oral arguments from Trump’s team, the plaintiffs’ attorneys and Colorado’s solicitor general. Within weeks or even days, the nation’s highest court could issue a precedent-setting ruling on the case, now titled Trump v. Anderson.
Despite remaining neutral on Trump’s eligibility during trial proceedings, Griswold has since said that the Colorado Supreme Court “got it right,” and
says the state’s election laws worked exactly as intended.
“The facts of this case are unprecedented, but the legal mechanism is routine,” lawyers for Griswold wrote in a Jan. 31 U.S. Supreme Court brief. “The dispute was capably and constitutionally handled by the procedures directed by Colorado’s legislature to resolve these precise issues. This Court should affirm and uphold Colorado’s right to exclude from its presidential ballots ineligible insurrectionists.”
Legacy of Jan. 6
Over more than
30 hours of evidentiary hearings held beginning Oct. 30, the trial in Denver’s Courtroom 209 at times closely resembled the proceedings of the House of Representatives’ select Jan. 6 committee, complete with dramatic video exhibits of Trump’s election-denying rhetoric and the mob’s Jan. 6 assault on the Capitol. Members of Congress and law enforcement officers assigned to protect the Capitol testified in graphic detail about the day’s events.
Trump was represented in the Colorado case by Scott Gessler, a former Colorado secretary of state who had himself endorsed debunked conspiracy theories alleging widespread fraud in the 2020 election, during an unsuccessful bid for Colorado Republican Party chair the following year. Trump’s defense in the case
relied extensively on close Trump loyalists and election deniers who had organized or attended pro-Trump “Stop the Steal” events on or prior to Jan. 6, and who used their time on the witness stand to reiterate their beliefs that the election had been stolen or that Antifa had been responsible for the violence on Jan. 6.
In her
Nov. 17 ruling, Judge Sarah B. Wallace wrote that many of the witnesses called by the defense lacked credibility and even showed an “inability to discern conspiracy theory from reality.” Although Wallace ruled that Trump had, in fact, “engaged in insurrection,” she rejected the plaintiffs’ case on the grounds of a legal theory, advanced by a handful of conservative law professors, holding that the president is not one of the “officer(s) of the United States” to which Section 3 applies.
But after granting the plaintiffs’ expedited appeal, the Colorado Supreme Court issued a ruling one month later soundly rejecting the theory, while affirming many of Wallace’s other findings. Its seismic majority opinion was the first of its kind in the nation’s history. It was followed just 10 days later by Maine Secretary of State
Shenna Bellows’ order declaring Trump ineligible on the same grounds. Like the Colorado ruling, Bellows’ order is on hold pending the outcome of U.S. Supreme Court proceedings, meaning that Trump will still appear on both states’ primary ballots.
Both rulings have been the subject of intense criticism — not only from Trump allies, but also from centrist and liberal commentators who worry about the consequences of barring a presidential frontrunner from the ballot. The “political and civic logic” of the Section 3 challenges,
wrote New York Magazine’s Jonathan Chait, “strikes me as dangerous and likely to backfire.” Lawrence Lessig, an influential left-leaning legal scholar, has argued the Supreme Court must unanimously reject the Colorado ruling “to preserve its integrity.”
Trump, who faces multiple criminal indictments over his efforts to overturn the results of the 2020 election, has nonetheless remained the overwhelming favorite to win the 2024 Republican nomination since announcing that he would seek the presidency again.
Ilya Somin, a George Mason University law professor who filed an amicus, or friend-of-the-court, brief in support of Trump’s disqualification, spoke during a panel discussion hosted by the conservative Federalist Society on Wednesday and conceded that Section 3 disqualification is a “constraint on democracy, but one that preserves democracy itself.”
“Another way that you can put it is that, if you like to say, as many conservatives do, that we are a republic, not a democracy, Section 3 is one of several aspects of the Constitution that reflects that principle,” Somin said. “(It) reflects some degree of suspicion of unconstrained democracy, which if not limited in certain ways can destroy itself.”
‘The law must stand’
The plaintiffs who brought the case, with help of the liberal nonprofit Citizens for Responsibility and Ethics in Washington, say the concerns about the “undemocratic” nature of Trump’s potential disqualification have it backwards.
“What could possibly be more undemocratic than failing to enforce the Constitution?” Claudine Schneider, one of the six plaintiffs, said in an interview. “It is undemocratic to lie about the outcome of an election, not to mention to mobilize masses to attack the peaceful transfer of power.”
Before moving to Colorado in the 1990s, Schneider served five terms in Congress as a Republican, representing Rhode Island’s 2nd District during the Reagan and George H.W. Bush administrations. A longtime environmentalist who has regularly endorsed Democratic candidates for president beginning with Barack Obama in 2008, Schneider’s disaffection with the GOP began long before Trump’s election.
But that’s hardly the case for other plaintiffs, including Krista Kafer, a Denver Post columnist who remains a registered Republican and voted for Trump in 2020 — in large part, she said in a recent interview, because of her pro-life views. It’s unlikely, she added, that she will vote for Biden this year.
“I don’t vote for politicians that are not pro-life — or at least act pro-life, in the case of Trump,” Kafer said. “But for me, insurrection and refusing to concede an election and trying to (overturn) an election, to me is a line that cannot be passed.”
“I think this is beautiful,” Schneider said. “It’s a melting pot of different perspectives that have … coalesced into a point of view that the law must stand.”
The legal team representing the plaintiffs, too, hardly resembles the pack of “far-left extremists” described by Jason Miller and other Trump allies. Its lead attorneys are largely well-heeled veterans of white-shoe corporate law firms and clerkships with high-ranking conservative judges. And over the last several months and years, the flurry of scholarly research, law-review articles and amicus briefs pertaining to Section 3 has seen plenty of solidly conservative figures in the legal establishment lend their support to the case for Trump’s disqualification, including Somin and
William Baude, a former clerk to Supreme Court Chief Justice John Roberts.
Following the submission of more than 3,000 pages of amicus briefs and trial transcripts to the court over the last month, Roberts and the other justices will be asked to wade into legal territory with little settled precedent or relevant case law from the last century and a half. Key issues
expected to be weighed by the court include whether Section 3’s reference to “officer(s) of the United States” includes the president and whether the clause is “self-executing” or requires congressional action to be enforced.
“From my side of the debate, we do have to prevail on several different issues. That obviously is a disadvantage,” said Somin. “The other side need only prevail on one out of about five or six issues.”
Playing politics
Minutes before the trial in Denver District Court began, Miller made a confident prediction.
“This case is going to fail,” he said. “Whether it fails here, whether Judge Wallace does the right thing, or whether this fails when it goes further up, this is going to fail.”
Thursday’s oral arguments come amid a
cloud of doubt and distrust felt by many Americans towards the Supreme Court, especially in the wake of its decision last year to overturn Roe v. Wade and roll back 49 years of federal protections for abortion rights. Republican-appointed justices hold a 6-3 majority on the court, and three of its conservative justices were appointed by Trump himself.
Critics of the court’s politicization seized on a Fox News appearance last month by Alina Habba, an attorney representing Trump, in which Habba predicted the court would rule in Trump’s favor.
“I think it should be a slam dunk in the Supreme Court,”
Habba said. “You know, people like (Justice Brett) Kavanaugh, who the president fought for, who the president went through hell to get into place, he’ll step up.”
Proponents of Trump’s disqualification have called on Justice Clarence Thomas, the court’s longest-serving justice, to recuse himself from the Colorado case. His wife, Ginni Thomas, is a far-right activist who was
closely linked with organizers of pro-Trump “Stop the Steal” efforts in the weeks leading up to the Jan. 6 attack. No recusal by Thomas or any other justice has been noted in any of the court’s orders in the case to date.
Schneider said the case is an opportunity for the court’s Republican-appointed majority to “adhere to what they claim or their guiding conservative principles of originalism, textualism and federalism.”
“Those justices, at this moment in time, are in the spotlight. And they also know that their credibility, according to many polls, is minuscule,” Schneider said. “So I think they are under an enormous amount of pressure to not play politics, or kowtow to the ex-president, but rather do what is right for the good of the country.”
Newsline’s Quentin Young contributed to this report.
Colorado Newsline is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Colorado Newsline maintains editorial independence. Contact Editor Quentin Young for questions: info@coloradonewsline.com. Follow Colorado Newsline on Facebook and Twitter.
Now that Donald Trump appears to be headed to appearing on the November presidential ballot against President Joe Biden, the former president who refused to debate any of his Republican Party has suddenly decided debates are not only important but key to his re-election.
According to MSNBC analyst Zeeshan Aleem, Trump's turnabout on standing on the stage with an opponent may not help him and could hurt him because he is "overestimating" the impact.
As the MSNBC columnist wrote, "the real reason Trump is so eager likely has nothing to do with the public good and everything to do with his estimation that he’ll be able to thrash Biden on the debate stage ahead of Election Day. But that playbook isn’t as clear-cut as Trump may think it is."
As he noted, Trump's plans aren't "unreasonable" since he views his appearances through an "entertainment" lens, but, as he noted, the now-former president's debate performances in 2020 didn't move the needle for him and he lost.
"In 2020, instant polls showed that viewers believed Biden outperformed Trump during their two debates; Biden was able to confidently get his message across," he wrote. "Assuming Biden and Trump secure their respective nominations, it’s likely that Biden will benefit from lower expectations if he performs competently. (One of the many irritating aspects of horse race politics is that candidates are judged against narratives as much as they are judged against each other.)"
"Everybody already knows both candidates extremely well," he added. "Everybody already knows both candidates extremely well. Both politicians will have had one recent term as president under their belt. Both politicians are fixtures in the news. Many political scientists are already skeptical that debates change voters’ attitudes and behavior, and the percentage of people who might tune in to these debates and learn something fundamentally new about the candidates or their beliefs is going to be vanishingly small."
The U.S. Supreme Court will undoubtedly look for some way to determine the Colorado ballot case without deciding whether Donald Trump is eligible to hold office, but a retired conservative judge doesn't see an "off-ramp" for them.
The Colorado Supreme Court disqualified the former president from the ballot under the U.S. Constitution's insurrection clause, and former federal judge Michael Luttig told MSNBC's "Morning Joe" the high court has no way to avoid ruling on his eligibility.
"The Supreme Court finds itself in a very precarious position today," Luttig said. "Undoubtedly, it doesn't want to decide this case, and it will be looking for all legitimate off-ramps to decide that the former president is disqualified, but there are no legitimate off-ramps to that decision. What you'll see this morning at the court is the court looking, plumbing all possibilities with counsel, as to how the court can resolve the case without deciding whether the former president was disqualified."
The reason that decision will be unavoidable, Luttig said, is the president clearly engaged in insurrection.
"Section 3 disqualifies any person who engaged in an insurrection or rebellion against the Constitution of the United States, having previously taken an oath to support the Constitution," Luttig said. "There's no question whatsoever that the former president engaged in an insurrection against the Constitution when he attempted to remain in power beyond his constitutional term of four years and denied President Joe Biden the powers of the presidency to which he was entitled, having won the election by a vote of the American people. All of this prevented the peaceful transfer of power for the first time in American history. This is precisely the insurrection that disqualifies one under Section 3 of the 14th Amendment, so, you're right, that is the only legal issue."
"But there's such massive political consequences that, although the Supreme Court ought not consider those, undoubtedly, they will consider them," the retired judge added. "But the Constitution requires the disqualification of the former president."
The U.S. Supreme Court will hear oral arguments to determine whether Donald Trump should be disqualified from the Colorado ballot, and a legal expert identified the strongest argument against the former president remaining eligible.
The Colorado Supreme Court ruled him ineligible in December under the U.S. Constitution's insurrection clause, but Trump has appealed to the high court as other states watch and wait for the final decision, and MSNBC legal analyst Barbara McQuade told "Morning Joe" that the law was fairly clear on this political issue.
"If you look at the language of Section 3 of the 14th Amendment, it says not only that someone 'engaged in insurrection,' it also says, 'or provided aid or comfort' to those who did," said McQuade, a former U.S attorney. "I think there are a number of ways, just as the Colorado Supreme Court did, to find that Donald Trump did, indeed, engage in insurrection, which would bar him under this clause. For example, the speech he gave at the Ellipse and the tweets he sent even after the attack was under way could be a basis for engaging in insurrection."
"However, if there is a worry that that violates any First Amendment rights that he may have, I think a stronger argument is that he provided aid and comfort to the same," McQuade added. "As president, unlike the rest of us, he has affirmative duties to take care that the laws be faithfully executed. His failure to call off that insurrection after 187 minutes, I think, is maybe the strongest argument that he provided aid and comfort to those who were engaged in insurrection. That would bar him, as well."
The case puts the court squarely in the middle of the 2024 presidential election, no matter what the justices decide, but McQuade said they should base their decision on the law and not political considerations.
"Chief justice [John] Roberts has his hands full here," she said. "I think we are at a moment in our nation's history when public confidence in the Supreme Court is very low. I think it has to be at the back of his mind that he doesn't want to do anything that makes that worse. If anything, he wants to bolster confidence. It's difficult to know which way that cuts. Removing Donald Trump from the ballot, I suppose, would be putting the court at the center of American life. Perhaps he would like to avoid being the decision maker that removes a presidential candidate who is leading his party for the nomination."
"On the other hand, [justice] Clarence Thomas himself has said it is not the job of the Supreme Court to render extinct language from the Constitution," McQuade added. "To say that, well, he is popular, so we should just forget about worrying about the 14th Amendment, it is the job of the court to interpret the law. So I think that they're a little damned if they do, damned if they don't here. If they say, you know, no, the voters should decide, that would really abdicate their role as the court to interpret the law."
Now, there’s a legitimate chance Donald Trump could be running for president, or even serving as commander in chief, from behind bars.
Two overriding factors contribute to this bizarre reality.
Firstly, there’s very little — legally speaking — preventing Trump from doing so.
Secondly, Trump himself has offered no indication he’ll step away. To the contrary, he’s as emboldened as ever to run for and win the presidency he lost in 2020.
Thus far, juries have found Trump civilly liable for the sexual abuse and defamation of writer E. Jean Carroll. He’s been ordered to pay more than $88 million combined in damages.
New York Judge Arthur Engoron also found Trump and associates of his business empire liable for fraudulently inflating the value of the Trump Organization’s assets. Determination of damages in the civil fraud trial are expected this month — and could be well into the hundreds of millions of dollars.
And then there's the felony charges: 91 in total across four cases. If convicted, Trump could face significant prison time — totaling more than 700 years combined.
His trials are scheduled in the midst of the Republican presidential primary.
The indictments:
For the first time in U.S. history, a grand jury on June 8, 2023, federally indicted a former president — Trump — on 37 felony counts related to the alleged willful retention of classified documents and conspiracy to conceal them. District Judge Aileen Cannon set trial to begin May 20, but in February, special counsel questioned whether the FBI missed searching some rooms at Trump’s Mar-a-Lago residence, ABC reported.
Then it happened again on Aug. 1 when Trump was indicted on four separate federal counts related to his alleged efforts to overturn the 2020 election. He was set to be tried starting March 4, but U.S. District Judge Tanya Chutkan delayed the trial's start as Trump — unsuccessfully, so far — petitioned a federal appeals court to rule that he enjoys presidential immunity from such prosecution.
Trump also faces a criminal trial in Georgia related to election interference in the state, with trial requested for Aug. 5. Fulton County District Attorney Fani Willis admitted in February to having a romantic relationship with a special prosecutor overseeing the case but denied any tainting of the case, Raw Story reported.
Separately, Trump is charged in New York with 34 felony counts of falsifying business records in relation to payments the Trump Organization made to adult film actress Stormy Daniels. His trial is slated for March 25.
Such a laundry list of legal woes would seemingly sabotage any politician’s campaign efforts. But the cases haven’t slowed Trump down in his pursuit of a second term as president or slashed his chances — now as good as ever — of winning the 2024 Republican nomination.
Trump, who has handily won in the Republican primaries thus far, is almost certain to become the Republican nominee — and has made it clear he has no intention of dropping out of the race no matter how severe his legal battles become.
“I see no case in which I would do that,” Trump said in June during an appearance on a radio show hosted by political strategist Roger Stone, a longtime confidant. “I just wouldn't do it. I wouldn't do it. I had opportunities in 2016 to do it, and I didn't do it.”
But Allan Lichtman, a professor of history at American University, said campaigning for president and defending himself against criminal charges are two very different endeavors.
“He thinks he can win this case in the court of public opinion, but the truth is, Trump can huff, and Trump can puff, but he can't blow the courthouse down,” Lichtman said. “It’s a very, very different game once you enter a federal courthouse or a state courthouse. You can't just bluster. Anything that you present has to be proven, and you're subject to perjury.”
Still, Trump can continue to run his campaign while facing these charges — and he could even do so from prison in the event he were to be tried, convicted and sentenced before the 2024 election.
“Trump’s legal problems shouldn’t affect his campaign. Many of his supporters believe that he is being treated unfairly, and there is no prohibition against a defendant under indictment or even a convicted felon from serving as president,” said Neama Rahmani, a former assistant U.S. attorney and president of West Coast Trial Lawyers. “Theoretically, Trump could even be president while in prison.”
Indeed, the U.S. Constitution stipulates only that a presidential candidate be a natural-born citizen of the United States, be at least 35 years old and a U.S. resident for 14 years. Trump easily checks all those boxes. And congressional Democrats’ strongest efforts to potentially disqualify Trump from ever again seeking the presidency — convicting him following impeachment trials — failed.
So, what would it take for Trump to run a presidential campaign — or govern the nation — from prison?
Raw Story interviewed historians, legal experts, political operatives and former government leaders who pieced together a playbook for how he could do it — and the peril that he’d face along the way as he stands to secure the GOP nomination ahead of a general election rematch with President Joe Biden in November.
Campaigning from a cell
Each of the charges Trump faces in the classified documents federal indictment carries maximum prison sentences between five and 20 years. Across all four indictments, potential prison time could span hundreds of years.
Being behind bars would, of course, prevent Trump from campaigning in his signature fashion: at big, rowdy MAGA rallies.
But Amani Wells-Onyioha, operations director at Democratic political firm Sole Strategies, envisions Trump still figuring out ways to communicate with potential voters.
“There's no doubt in my mind that he would have some recorded press from the little prison phone. There's no doubt in my mind that he would set up press opportunities whenever he's out on the yard getting his recreational use in, that there would be cameras there,” Wells-Onyioha said. “He would be using every opportunity to campaign. I don't see him stopping at all, and I only see him using this as fuel to make him go harder.”
Keeping up his Truth Social posts from prison might not be such a challenge for Trump, Wells-Onyioha said, as some jails and prisons might allow internet access.
“I do see him using the internet because that's all that he has, and he's great at that already,” Wells-Onyioha said. “He's a huge internet, TV personality type of guy, so it really would just force him to be in a position to do something that he's the best at, which is unfortunate for the country, but as far as he's concerned, I think he thinks that this is political gold for himself.”
Plus, Trump isn’t building a campaign from scratch. His 2024 presidential campaign is flush with staffers. He enjoys the support of super PACs, which may raise and spend unlimited amounts of money on his behalf to promote the former president and attack his opponents.
He also has a roster of high-profile MAGA acolytes — from Reps. Marjorie Taylor Greene (R-GA) and Elise Stefanik (R-NY) to Sen. J.D. Vance (R-OH) and South Dakota Gov. Kristi Noem — who gladly serve as Trump surrogates.
And save for former South Carolina Gov. Nikki Haley, who remains in the race despite losses in the Iowa caucuses and New Hampshire primary, with dim prospects going forward, Trump has already vanquished his other main GOP challengers, including Florida Gov. Ron DeSantis, Sen. Tim Scott (R-SC), former New Jersey Gov. Chris Christie, former Vice President Mike Pence and businessman Vivek Ramaswamy.
Meanwhile, few politicians are as good as Trump at presenting himself as a victim — he’s single-handedly vaulted the terms “witch hunt,” “deep state,” “hoax” and “fake news” into the contemporary political lexicon. As an inmate, Trump could become a martyr to the MAGA cause.
“You’re obviously handicapped to campaign, but in this electronic age, you can certainly campaign virtually, plus Trump's pretty well known. It’s not like he has to introduce himself to the American people,” Lichtman said.
If not prison, maybe jail
Former President Donald Trump arrives for his arraignment at Manhattan Criminal Court on April 04 in New York City. Michael M. Santiago/Getty Images
Although it seems unlikely Trump will be serving an active prison sentence before the November election, it’s conceivable he could wind up in pretrial confinement of some sort while campaigning.
This, several legal experts said, will depend on Trump himself.
“He has to behave himself during a trial, and that's not beyond the realm of possibility that he'll act up, thinking that somehow he can win over the jury, but that would be a mistake,” said Kevin O’Brien, a former assistant U.S. attorney and partner at Ford O’Brien Landy LLP who specializes in white-collar criminal defense.
His social media antics stand to put him in potential violation of pretrial instructions and release terms, raising the question of whether a judge would dare throw the former president in jail. So far, he’s been fined thousands for violating gag orders.
Brazenly defying a judge’s order or attempting to intimidate witnesses are among the more common ways a defendant can get himself thrown in jail or home confinement before or during his trial.
This isn’t merely conceptual, said Mike Lawlor, a criminal justice professor at the University of New Haven and former member of the Connecticut House of Representatives, who helped lead impeachment hearings against then-Gov. John Rowland, who ultimately pleaded guilty in federal court to political corruption.
Knowing Trump’s penchant for cutting outbursts, Lawlor can envision a judge sanctioning Trump for defying directives. Trump not only has one judge with whom to contend, but several, given the multiple legal actions against him.
“The opportunity to engage in contempt of court or witness tampering or obstruction of justice is fraught at this point. I’m not sure he has the self-control to keep himself from doing something that would get him confined pre-trial,” Lawlor said.
The U.S. House Jan. 6 select committee accused Trump of potential witness tampering, and Lawlor says he’s monitoring similar allegations here, especially because so many of the witnesses are GOP staffers of the former president.
“It’s so easy to imagine a situation where someone could be contacted and intimidated,” Lawlor said. “I think the temptation to do that for a guy like Trump is probably irresistible. I’m not sure his attorneys or the advisors he listens to can stop him from doing so. I don’t rule it out. As I said, it’s unlikely, but I can definitely see it happening.”
Using legal danger to fuel fundraising
The Trump campaign wasted no time in exploiting the indictments to raise money, leaning into a familiar claim that the candidate is a victim of a Democratic witch hunt.
Only one day after news broke about Trump’s first federal indictment, a fundraising appeal built around the charges appeared on the campaign website prominently displayed in a column on the left-hand side of the page, suggesting contribution amounts ranging from $24 to $3,300. The message lays out a bill of particulars with the former president at the center of the persecution narrative, beginning with the apocalyptic opener: “We are watching our Republic DIE before our very eyes.”
Trump Save America, the beneficiary, is a joint fundraising committee for Donald J. Trump for President 2024 and the Save America PAC, which supports Trump.
The fundraising appeal contends that a “witch hunt began when the FBI RAIDED my home and then staged it to look like a made-for-TV crime scene with police sirens and flashing red and blue lights.”
Alluding to his previous indictment in New York state, the appeals continued: “So, after a state prosecutor failed to break us, the Deep State sharpened their attacks and unleashed a FEDERAL prosecutor to TRY and take us down.”
Notwithstanding Trump’s claim, the charges in New York state remain pending, and Jack Smith, the special prosecutor appointed by U.S. Attorney General Merrick Garland, was investigating Trump for allegedly mishandling classified documents four months before a grand jury in New Manhattan returned an indictment on the state charges related to the Stormy Daniels affair.
Minutes after the Aug. 1 indictment dropped, Trump started fundraising again, selling "I Stand With Trump" T-shirts featuring the indictment date, and Trump's mugshot from his booking at the Fulton County Jail helped him bring in more than $7 million after the Georgia indictment as he quickly took to selling mugs, shirts and other merchandise with the photo.
At least one prominent surrogate helped retail the fundraising push.
Kari Lake, a fellow election denier who lost her race for governor of Arizona in 2022, joined a Twitter Spaces co-hosted by Dustin Stockton and Jennifer Lynn Lawrence on the night news broke about Trump’s indictment on charges of mishandling classified documents.
Stockton and Lawrence helped organize the rally that provided the springboard for the Jan. 6 insurrection. During her appearance on Stockton and Lawrence’s Twitter Space, Lake, who is now running for U.S. Senate, told more than 1,300 listeners she had just gotten off the phone with Trump shortly after news broke about the indictment on June 8. Lake said it wasn’t enough for Republican voters to just say they stand with Trump or condemn the indictment.
“And if we really stand with him, we need to go to DonaldTrump.com and make a donation tonight,” said Lake, who is herselfpreparing a 2024 U.S. Senate run in Arizona. “Everybody, whether it’s $5, $10, $500 — whatever you can afford. Because if we’re gonna stand with him, we need to put our money where our mouth is tonight.”
The political monetization of Trump’s legal woes grows deeper by the month. Go to Trump’s campaign website and you’ll find several items on sale — a black-and-white ceramic coffee mug is $24 — featuring a fake mugshot of Trump above the words “NOT GUILTY”. Of late, Trump hassuggested that he would “end” his campaign in a deceptive bid to squeeze money from supporters.
The Federal Election Commission, which enforces federal campaign finance laws, would have no grounds to intervene in Trump’s fundraising efforts while facing criminal charges or even time in jail or prison, said Ann Ravel, who served as an FEC commissioner from 2013 to 2017, including one year as the commission’s chairwoman.
Trump's campaign is selling these black-and-white ceramic coffee mugs for $24. (Screen grab)
Trump’s campaign could easily continue sending supporters incessant fundraising emails and text messages in Trump’s name.
“The only problems for him would be if there's failure to disclose, or if people are giving more than the limits, all of the things that are traditional FEC issues, but they don't have the authority to do anything with regard to a person who's been indicted and is still fundraising,” Ravel said. “That in and of itself is not sufficient for the FEC to take any action.”
Lessons of Eugene Debs, incarcerated presidential candidate
Trump wouldn’t be the first candidate to run for president from prison if he were convicted.
In the weeks before the 1920 election, Eugene V. Debs, the Socialist Party candidate for president of the United States and an inmate in federal prison, touched on the significance of the moment.
“Has there ever been anything like it in American history before?” Debs said, as reported by the socialist newspaper Appeal to Reason. “Will there ever be anything like it in American history again? We must impress it upon the people that this scene is symbolic of what has befallen this country.”
There has been one other. Lyndon LaRouche, whom The New Republiccalled “The Godfather of Political Paranoia,” ran from prison in 1992 after being convicted of tax evasion and mail fraud.
His vice presidential running mate, the Rev. James Bevel, did most of the campaigning. This suggests that a jailed Trump could lean heavily on the presence of a charismatic vice presidential candidate — be it someone such as Lake of Arizona, Rep. Marjorie Taylor Greene of Georgia or even banished Fox News host Tucker Carlson.
LaRouche received .02% of the popular vote — 26,334.
Debs, who was serving a 10-year sentence for decrying the United States’ involvement in World War I, received 3.4% of the popular vote — 919,799.
He received 6% of the vote as a candidate eight years earlier, in 1912.
While emphasizing that she’s speaking as an individual, Allison Duerk, director of the Eugene V. Debs Museum, located in Debs’ home in Terre Haute, Ind., said she cringes at comparisons between Debs and Trump. In material ways, the two men are polar opposites.
“I bristle at recent casual references to the 1920 campaign — not because they are inaccurate on the surface, but because these two men and their respective projects are diametrically opposed,” she told Raw Story.
Duerk does believe Debs predicted the emergence of American political leaders such as Trump.
Illustration of Eugene Debs while running for president in prison. Indiana State University archives
“Take this quote from the speech that got him locked up,” she said, quoting Debs: “‘In every age it has been the tyrant, the oppressor and the exploiter who has wrapped himself in the cloak of patriotism, or religion, or both to deceive and overawe the people.’"
In an Appeal to Reason article, Debs said he believed in change “but by perfectly peaceful and orderly means.” He added, “Never in my life have I broken a law or advised others to do so.”
Unlike Trump, who nurses grievances daily, the article said of Debs, “Nothing embitters him. Injustice, oppression, persecution, savagery do not embitter him. It is a stirring, an uplifting thing to find a man who has suffered so much and remains so ardent and so pure.”
The U.S. government and the prison warden made small accommodations to Debs’ candidacy. He was, for one, allowed a single written message per week to voters.
“Where Debs had once stormed the country in a verbal torrent,” wrote Ernest Freeberg, author of Democracy’s Prisoner, “he would now have five hundred words a week.”
Debs still had some of the trappings of a political campaign, including a button that had his photo from prison with the words, “For President - Convict No. 9653.” He had printed material that said, “From Atlanta to the White House, 1920,” a reference to his residency inside the Atlanta Federal Penitentiary.
On election night, Debs received the results in the warden’s office and soon conceded the election to President-elect Warren Harding.
In his book Walls and Bars, Debs wrote that the question came up in the room about his potential ability to pardon himself as president — an action over which Trump has reportedly mused.
“We all found some mirth in debating it,” Debs wrote.
Serving as president from prison
If Trump ran a successful campaign from jail or prison, is there anything stopping him from assuming the Oval Office if he were elected president?
“There is nothing in our traditions or the Constitution that prevents someone who is indicted or convicted or, in fact, serving in jail, from also serving as the president,” said Harold Krent, law professor at the Chicago-Kent College of Law, who formerly worked for the Department of Justice. “Does it make any sense? No. But there is no Constitutional disablement from that happening. So, you could think of a scenario in which the case goes to trial, maybe after the primary and results in a prison time with President Trump and then he is inaugurated, and he gets to serve as president from some prison farm somewhere.”
Lichtman said “of course” Trump would just pardon himself of any federal crimes were he reelected president. There’s also the possibility of Trump attempting to preemptively pardon himself, with then-President Gerald Ford’s pardoning of Richard Nixon serving as an imperfect template.
But if Trump is convicted on any state-level charges, where federal pardons do not apply, that’s a different story.
“That's unprecedented, but the pardon power is pretty absolute,” Lichtman. “He can’t pardon himself for the New York case because that’s a state case. If he's convicted in New York, he's stuck. If ... he's convicted in Georgia, he can’t pardon himself from that either, because that's also a state case.”
Trump’s ability to pardon himself is widely debated in the academic community, Krent said.Federal document listing indictment counts against former President Donald Trump. U.S. District Court, Southern District of Florida
“There's no law on the books that says you can't. You just have to reason from the idea of separation of powers and the Constitution or to think that it doesn't make any sense to have one person aggregate or accumulate so much power,” Krent said. “As a constitutional matter, I think that that would be too much of a conflict of interest to be able to pardon yourself.”
Interestingly, the classified documents federal indictment didn’t include counts related to 18 U.S.Code 2071, which deals with the concealment, removal or destruction of government documents. This would disqualify anyone found in violation of the code from running for office, Rahmani said.
“That particular provision was passed after Nixon as a disqualification provision that prevents anyone convicted of it from holding public office,” Rahmani said. “Trump's lawyers would have said that it's unconstitutional because only the Constitution can place limits on who could be president. You can be a felon. You can be in prison and still theoretically be president of the United States.”
The Constitution could be interpreted — ostensibly by the U.S. Supreme Court — that an imprisoned president wouldn’t qualify as capable of carrying out his duties, preventing him from taking the office, Ravel said.
“There's nothing to stop him from becoming president either because the provisions in the Constitution about the presidency and the requirements for presidency don't reflect any concern if a president has been indicted or is in jail,” Ravel said. “Although if he goes to jail, it would create a problem for him because the Constitution does have concerns about the inability to carry out the obligations of the office, which he certainly wouldn't be able to do in jail.”
Specifically, Section 4 of the Constitution’s 25th Amendment potentially empowers Congress to determine — via a two-thirds vote of both chambers — that a president is “unable to discharge the powers and duties of his office” and thereby transfer presidential powers to the vice president.
But if Trump is elected in November, and trials end up taking place after the general election, some of his legal peril could subside — at least at the federal level.
“There's clear Department of Justice memos and policies. It's pretty clear that a sitting president cannot be prosecuted,” Rahmani said.
If Trump won and was convicted but on appeal, he would “probably” still be able to get inaugurated, Krent said.
“The question is whether they would stop the appeal and let him serve out the presidency before it would continue,” Krent said. “Uncharted waters in terms of how this would go. It's gonna affect the primary. It would affect the general election, and it certainly would affect his ability to conduct a presidency.”
Editor’s note: A version of this article was originally published on June 13, 2023, and has been updated to reflect numerous legal and political developments involving Trump.
Former President Donald Trump arrives for his arraignment at Manhattan Criminal Court on April 04 in New York City. Michael M. Santiago/Getty Images
Trump's campaign is selling these black-and-white ceramic coffee mugs for $24. (Screen grab)
Illustration of Eugene Debs while running for president in prison. Indiana State University archives
Federal document listing indictment counts against former President Donald Trump. U.S. District Court, Southern District of Florida