We’re Not Coming All The Way Back From This

A Donald Trump supporter outside the Wilkie D. Ferguson Jr. United States Federal Courthouse in Miami on June 13, 2023. (Photo by Miguel J. Rodríguez Carrillo /Getty Images)

My mother asked me recently what would happen if Donald Trump were convicted of a crime and then elected president. Would he command the military from inside a prison cell? Would his Secret Service detail be incarcerated with him? Could he pardon himself?

As the (ugh) lawyer in the family, I’m supposed to know. I didn’t, because no one does. The idea of American voters handing presidential power to an inmate is so darkly absurd that the Founders didn’t think to address it.

If we could travel through time and warn James Madison to provide some guidance in the Constitution about how a coup-plotting criminal might be expected to faithfully execute the laws, I imagine he’d stop work and tear up the document. There’d be no point in continuing. A people corrupt enough to force such a dilemma on themselves will abandon the Madisonian project in due course.

The scenario in which Trump is reelected president while the federal cases against him remain pending is just as absurd and arguably darker. David Frum considered it in a piece for The Atlantic published on Tuesday. The first months of a second term would be consumed by Trump’s attempt to pardon himself, Frum notes. If the Supreme Court rejected it, he’d resort to ordering the Justice Department to dismiss the charges against him. Prosecutors there would (hopefully) refuse and resign; the department would empty out; Trump would move to fill the vacancies with cronies like Jeffrey Clark and Sidney Powell, who themselves might require pardons to free them from prison before they get to oversee federal law enforcement. The Senate (hopefully) would refuse to confirm said cronies, triggering another crisis.

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