Pondering the Prosecution of a President

Welcome once more to The Collision! A programming note: We’ll be taking a break for Thanksgiving next week, and we’ll be back to our regularly scheduled newsletter on November 30.

The Docket

• Donald Trump’s legal team filed a motion Wednesday for a mistrial in the ongoing civil case in New York regarding claims Trump and others committed fraud. According to NBC News, the motion focuses mostly on the gag order issued by Judge Arthur Engoron following Trump’s public comments on social media criticizing Engoron’s clerk. Trump has already had to pay two fines for violating the order, which he continues to do regularly on his social media accounts.
• So many court dates, so little time. That was the crux of the argument in a motion Trump’s lawyers filed Monday in the South Florida case involving the retainment of classified documents at Mar-a-Lago. The Trump attorneys requested Judge Aileen Cannon move a scheduled two-day hearing starting February 15 because it conflicts with another hearing scheduled for the same day in Trump’s New York hush-money case. On Thursday, Cannon granted the request and moved the hearing, which is concerned with the procedure for how to handle classified material during the trial, up to February 12, the Messenger reports.
• By the way, the conflicting hearing in New York is to consider a motion filed by Team Trump last month to dismiss the case brought by Manhattan District Attorney Alvin Bragg. Trump will likely attend that hearing in person. This week, Bragg’s team responded with a 98-page brief explaining why this isn’t the politically motivated prosecution Trump argues it is.
• And if you can’t tell, we’re in the midst of dismissal motion season for Trump’s trials, so get used to hearing about a lot of these motions now and in the first several weeks of the new year once judges start to consider them.
• The impeachment inquiry into President Joe Biden continues to move forward in fits and starts. House Speaker Mike Johnson told Fox News this week that after receiving a briefing from the three committee chairs leading the inquiry that “the appropriate step is to place key witnesses under oath and question them under the penalty of perjury to fill gaps in the record.” Johnson also reiterated his “full and unwavering support” for the three Republican chairmen: Rep. James Comer of Oversight, Rep. Jim Jordan of Judiciary, and Rep. Jason Smith of Ways and Means.
• You’ll notice Johnson has provided no definitive timeline for actually filing articles of impeachment. The Republican speaker said the House is moving “forward toward an inflection point” on impeachment—which is not much different from what he said two weeks ago: “I do believe that very soon we are coming to a point of decision on it.”

An Unprecedented State of Affairs

In an interview with the Washington Post this week, Fulton County District Attorney Fani Willis made a notable prediction about Donald Trump’s upcoming trial on charges alleging that he and his co-defendants tried to overturn the 2020 election results in Georgia.

“I believe in that case there will be a trial. I believe the trial will take many months,” Willis said Tuesday. “And I don’t expect that we will conclude until the winter or the very early part of 2025.”

If you’ve got your calendar handy, you’ll note that the “very early part of 2025” coincides with the start of a new presidential term, and it’s a distinct possibility Trump will be back in the White House. How can a criminal trial of a newly inaugurated president, uh, happen? How would this unprecedented situation unfold?

Before we consider this interesting question, though, let’s get all the caveats out of the way. This is one hypothetical stacked on top of a series of them; it’s hypothetical turtles all the way down. The case may not go to trial, for starters, though there’s no indication Trump is about to cop a plea or Willis is looking for an excuse to drop the charges. And even if it goes to trial, there’s no predicting this early with any certainty how long each side will take to present its case and when it will end. After all, the presiding judge in Fulton County is still figuring out the trial’s start date, a challenge given that Trump has three additional indictments and a presidential campaign on his plate. That packed schedule could even push the trial start date past the 2024 election. Of course, Trump may not win the presidential election, and he may not even win the Republican nomination. And Trump, like any one of us, could drop dead tomorrow.

Now that we’ve stipulated that those and numerous other scenarios are possible, let’s return to what Willis is suggesting and ask: How would things proceed if Trump’s Fulton County prosecution is ongoing as he’s being inaugurated on January 20, 2025?

Much of the discussion about Trump’s prosecutions has focused on the operative view of the Justice Department that a sitting president is immune from federal indictment and prosecution so long as he is in office. This opinion was first reached by the DOJ’s Office of Legal Counsel in 1973 and reaffirmed by the same office in 2000 (in an opinion written by the head of the OLC, future Judge Randolph Moss of the D.C. District Court).

The 2000 opinion is worth reading in full, but its conclusion is sufficient for our purposes, namely that “the indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers.” In plain terms, the head of the executive branch cannot be criminally prosecuted by a division of the executive branch. It would undermine the president’s constitutional authority. It just doesn’t compute.

So if there are any outstanding federal cases against Trump in the event he begins serving as president, those prosecutions will effectively and practically be over. That’s easy to understand, but it doesn’t give us any answer on the question of a state case, which is what Trump faces in Fulton County. The OLC opinion doesn’t apply to Willis because she’s not a federal prosecutor in the Department of Justice. (The same would go for Manhattan District Attorney Alvin Bragg’s criminal case against Trump, by the way.) So if the trial in Atlanta is still going while Trump is taking the oath of office, it’s full steam ahead, correct?

Not likely. We talked to some former federal prosecutors who speculated how Trump would make a similar but different argument: that his prosecution in Georgia would interfere with his ability to execute the office of the presidency. The operative constitutional principle would not be separation of powers but instead federalism and the supremacy of the federal government over state and local governments. A local district attorney’s criminal case cannot proceed if it interferes with the ability of the defendant to lead the executive branch.

Practically speaking, the Trump Justice Department—and most likely the Biden Justice Department before Trump even takes office—would make these arguments in federal court, seeking to enjoin Willis’ office from continuing its prosecution. If those arguments won the day, the Fulton County case would be put on hold until Trump was no longer in office—or unless and until Willis can successfully appeal.

Our sources on this emphasized over and over how unprecedented this all would be. A former president, facing criminal charges in a state, nonetheless elected to serve as president again? Expect this question, if it ever comes to pass, to find its way to the Supreme Court. 

One More Thing

Actually, there’s a potentially instructive Supreme Court precedent already involving a state criminal investigation related to Trump back when he was president. In 2019 Cyrus Vance Jr., the district attorney of Manhattan, issued a subpoena to Trump’s accounting firm requesting tax returns and other financial documents. This was all a part of Vance’s investigation into the alleged hush-money payments to Stormy Daniels, for which Alvin Bragg, who succeeded Vance as district attorney in 2021, eventually brought criminal charges against Trump.

But there was no indictment in 2019, and Vance was simply subpoenaing for documents. Trump argued in court that a sitting president had total immunity from any criminal procedures, and at the very least that prosecutors needed to reach a stricter standard for such a request. Neither the district court nor court of appeals accepted this, ordering Trump to comply with the subpoena. That’s when Trump appealed to the Supreme Court.

In a 7-2 ruling, the court held that the president did not have absolute immunity from all criminal proceedings in a state or local court and that the Constitution did not prevent a president from having to comply with a state subpoena or require a higher standard for compliance. Trump’s accountant had to comply.

The Vance case gets us a little closer to our hypothetical situation, but Chief Justice John Roberts’ majority opinion is typically narrow. A document subpoena is one thing—and since his accountant was the actual custodian of the documents, turning them over had zero impact on the executive’s ability to function— but a criminal trial? That’s likely something else.

Sarah’s View

Could any newsletter better prove that there’s no “try this one trick” to save a republican form of government? 

To give you the smallest glimpse into what a nerd I was even as a young child, I have a distinct memory of asking my dad a version of this question in middle school. At the time, it all made perfect sense: When an ordinary citizen takes the oath of office for the presidency, he alone holds the power of the executive branch and is therefore immune from all sorts of pesky “citizen things” for his time in office. If he commits a crime or does something else fundamentally betraying his office, that’s not a problem because the House will impeach him and five minutes after the Senate convicts him, the guys in blue windbreakers can show up because impeachment removes the immunity. This is almost certainly what the Founders envisioned. 

But what we are testing now is too bizarre to even make it into a law school hypothetical. What happens when the president commits an act in the final hours of his term such that Congress doesn’t really have time to impeach him while he’s in office and isn’t sure whether it even can impeach him once he leaves? Easy answer! Who cares because it’s as if he has been impeached anyway—he’s out of office, immunity is gone, and the criminal justice system can take over. Aha! But by failing to impeach him, he can run again. So what if he then runs for reelection and wins before the end of the criminal process? That would never happen because the American people would never elect someone who keeps playing “the floor is lava” with the constitution, right? But what if they did? 

The true constitutional answer to all of these hypotheticals is that we were never meant to need an answer to them. No constitution for self-government can save a people from voluntarily ending their own reign. “A republic, if you can keep it” wasn’t just a foreboding turn of phrase—it was a statement of historical literacy.

And so here we are. Careering toward any number of hypotheticals that have no answer. The generation before us gathered the kindling. Here we are lighting matches out of boredom and mindlessly tossing them over our shoulders. And in the meantime, we’ve outsourced civic education for our next generation to an authoritarian regime that is convincing them that maybe Hamas isn’t  the only group of terrorists who know what time it is. (And at the point I need to argue with Americans over whether bin Laden was right, what are we really preserving anyway?)