Oh, I can see it get much worse than a mere constitutional crisis (which it would be). I can see Trump, elected while in jail, getting sick of everything and ordering the military as CIC to break him out. Which, considering the aforementioned crisis, and what we’ve been learning about extremists in the military, seems likely that at least some would attempt.
Personally, I think it more likely if Trump elected while in jail, is that the state, realizing there is no ‘good’ answer, would release Trump on fundamentaly a ‘house arrest’ or ‘work release program’ with the understanding that technically he’d have to return to complete his sentence (depending upon duration) after his term in office. And that realpolitik being what it is, the first time he succeeded in some quasi-positive aspect, that the rest of the sentence would be commuted to time served.
It depends on where you split the text. Is it “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”? Or is it “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”? If the latter, then Congress can create a body that replaces the Vice President and the cabinet.
I’ll admit the former does seem to flow more naturally from the text. But I don’t think it’s so clear as to be definitive.
However, this is a side issue. The much bigger issue is that the 25th Amendment does not incorporate the line of succession into the role of acting president. It states that only one person - the Vice President - can step in as acting president. So if a sufficiently loyal VP wants to negate the process, all they have to do is refuse to serve. If they refuse to be the acting president, the job doesn’t devolve to the Speaker of the House or anyone else.
The idea that a single state can’t imprison the president, thereby depriving the other 49 of the federal executive branch chosen by the mutually-agreed constitutional process, is pretty mainstream AFAIK. It’s not just some crazy outre thing made up last year by the Rootin-Tootin MAGA Legal Association.
But one of the common triggers for a constitutional crisis is that a constitution dictates a plainly unacceptable result, and depending on what the charges are (like a president who went on a shooting spree on Fifth Avenue), maybe that’s what we’re talking about. So you look for ways out, and sometimes those ways out are messy. Maybe it’s fairly easy to convince the courts that this is such a hard case that they ought to acquiesce to a little bit of bad law; maybe it turns into a shooting war; maybe the imprisoned murderer president has a convenient accident; maybe the president gets out to kill again.
Once again, the state did not imprison the president.
What people are claiming is that a person who has been legally imprisoned somehow gets automatically released from prison if he gets elected president. And I’m asking the people who are claiming this to show me some evidence for this legal theory.
A side issue perhaps, but I don’t think your second reading could work because of the placement of the “either.” The “either” would have to come at the start of the sentence for this interpretation to work.
Moreover, if Congress wants to remove a President without having to rely on the Vice President, the proper avenue is impeachment.
What possible grounds would there be for charging him with high crimes and misde…
Oh, right, he’s in prison.
It’s an amazing reflection on how Trump and the Republicans managed to lower the standards so far in four years. We’re actually having a debate over how the President can serve after being imprisoned.
Of course it did (in this hypo). If not, who imprisoned the president? Are you saying that he is merely president elect? Once the EC meets, he gets a majority of votes, and on January 20th at noon, he is now the president who the state is imprisoning.
ETA: I think the word “either” in the 25th Amendment pretty definitively keeps the VP as part of the process. The “either” refers to the secondary body which ratifies or rejects the VP’s recommendation of temporarily removing the president.
First, debating wild “what if” constitutional scenarios did not start with Trump. How many times have we done the “can a twice elected president serve as VP” even though such a thing is ridiculously unlikely?
As to the first portion, it is one thing to impeach and remove a president because of crimes committed in office. I could even agree that it would be appropriate to impeach and remove for undiscovered crimes committed prior to office. But if the people/EC elect a president who is in prison for known crimes, and he is elected nonetheless, it is not proper for Congress to impeach and remove him for those crimes. That is the Adam Clayton Powell case and it improperly adds an additional qualification for the office.
I would argue it’s not the state incarceration that would make it impossible for him to discharge his duties.
It’s the fact that Trump committed the underlying crime, the consequences of which put in him a position of having to live in prison. In other words, it’s his fault that he’s unable to discharge his duties, not the fault of the state that incarcerated him.
I suspect that, like many people, you do not appreciate the severity of financial crimes or the impact that they have on ordinary people. Therefore, when you see prosecutions for white collar crimes, it’s easy to be convinced that the criminal is being persecuted or targeted unfairly - especially if you’re susceptible to gaslighting.
But you do really think your theory would hold if Trump were convicted of …say…beating his wife to death, then massacring his Secret Service detail? I don’t, and that’s why I think your theory that the Constitution says Trump can do anything he wants as long as he can win the 2024 election doesn’t hold water,
I think Little_Nemo’s point is that he wasn’t president at the time he was imprisoned.
As far as I know, there’s no requirement that a state release someone just because they’ve now been elected to a public office. So it would be up to the governor of the state in question to pardon or commute the sentence to get him out of prison. If that governor doesn’t like him, he could refuse to release him. That would be fun.
This is an incredibly hypothetical area of the law. We wouldn’t know what the requirements are until it happened (and hopefully it doesn’t), and what the requirements are found to be would be heavily dependent on the specific facts and what the least unpleasant option is. Maybe all of the men in suits decide that it’s very unseemly that an inmate be elected president and they decide to let the state keep their guy and have the VP become acting president. Maybe a militia from the states that supported the president-elect is already busting across the state line and the governor releases him to save face. Maybe the generals down at the Pentagon decide to order out for some Turkish and take over control the executive branch for themselves.
I don’t know that it’s even constitutional theory at that point so much as it is game theory.
If New York imprisons Donald Trump today, they are not imprisoning the President.
If New York imprisons Donald Trump today and he gets re-elected in 2024 while he is still in prison, then refer to my previous post.
What people are claiming is that a person who has been legally imprisoned somehow gets automatically released from prison if he gets elected president. And I’m asking the people who are claiming this to show me some evidence for this legal theory.
Go back to those threads and look up my posts. I have always said that these arguments are wrong. Just like I’m saying your argument in this thread is wrong.
Gee, if only there was some other means in the Constitution to remove a President from office if he was unable to carry out his duties. If there was, somebody should mention it in this thread.
Not that I’m disagreeing with you, but you appear to be replying to me when the quote is from @UltraVires. And I utterly agree that in an era of fully and easily dispersed chain of command, and a vastly reduced dependence on MADD strategies, having the nuclear launch codes fully available is both unneeded and dangerous.
No, just the opposite. If Trump was sentenced to a NY prison, he would be placed in administrative segregation in a maximum security special housing unit. I could even predict which prison he’d go to. (At least I could have ten years ago. I imagine units have changed since I retired.)
Oh come now. That is something that you would tell a small child. I didn’t ground you for hitting your sister, you grounded yourself by hitting your sister. In the real world and as a matter of observable fact, it would be the state itself that is using its laws and its coercive physical force to prevent the president from going to Washington and elsewhere to perform his duties.
You could say the same thing about taxing banknotes. The state is not taxing banknotes. It was the feds who put a bank in the state thereby causing their banknotes to be taxed.
If you want me to find the case that says a governor must release an elected incarcerated president, I’m afraid you have me in a pickle as obviously there is no such case. I am cobbling together the relevant doctrines. McCulloch v. Maryland says that a state’s legal powers may not be applied to a federal function. The Term Limits cases says that the Constitution’s requirements for federal office is exclusive and that a state may not add to them. And that is for its own congressman. Imprisoning a president affects the entire nation, not just that state’s own representatives. And the Powell case says that Congress may not refuse to seat a duly elected congressman. So patching this all together, it is not a stretch to say a state cannot prevent a president from serving. Please provide cites to the contrary.
I agree. If NY sends Trump to prison today, then it is incarcerating a private citizen. Completely legal. But imprisonment is not a distinct event that only occurs when someone walks through the front door of the prison. It is a continuing process. If, on January 20, 2024 at noon, after a majority of the EC votes for Trump, and the State of NY is holding him in a prison, then it most certainly and indisputably, is imprisoning the President at that time.
You are torching strawmen by repeating this. Of course being imprisoned would make a president unable to carry out his duties. The question is under our state/federal constitutional structure, may a state create such a disability unilaterally without any input from the other 49 states? The cases suggest it may not do so, even if it otherwise lawfully has the power to imprison or to tax.
But you still seem to be ignoring the critical issue of time. There is a significant difference between a state creating a disability and a disability being an existing condition.
If New York decided to imprison Donald Trump (or if Wyoming decided to imprison Joe Biden) while he was in office, I agree that would be an interference with the office of the Presidency. The Supreme Court has placed limits on bringing criminal charges against Presidents while they are in office.
But private citizens do not enjoy this protection just because they were President or may someday be elected President. They have to face the same legal procedures as anyone else. And like anyone else, they have to accept the consequences of those legal procedures. If those consequences include imprisonment, then they are unable to carry out the duties of being President. And the Constitution explains the procedure for when somebody who is President is unable to carry out the duties of the office.
This is a very clear cut situation. I’m surprised you feel there is a debate here.
Let me throw this scenario at you to see if it makes the situation clear to you.
Imagine there is a mafia leader. Let’s say Tony Soprano. He is arrested and convicted for his mob-related activities and sent to prison.
But Soprano is the head of a large criminal organization. So he tells his subordinates and their families to all move into some small rural village and register as voters. They are several hundred of them and the community is small enough enough that they form a majority. Soprano announces he is running for mayor of the village and on Election Day all of his people vote for him and he wins the election.
So Soprano is now the mayor of this village. But he’s in prison so he can’t carry out the duties of being mayor. So Soprano’s lawyers argue that he has to released. Because otherwise the state would be thwarting the will of the voters.
Do you see how this is not a valid legal argument? A convicted criminal cannot overturn the legal procedures against him by getting elected to office. Getting elected is not a “Get Out Of Jail Free” card. If you have been lawfully imprisoned and then manage to get elected to office, you have to forfeit the elected office because of your imprisonment. Not the other way around where the state has to negate your imprisonment because of your election to office.
In fairness to @UltraVires, you’re not really addressing his argument in this example which is that there’s a Supremacy Clause issue if a state continues to incarcerate someone elected to the federal office of President.
The truth of the matter is that everyone can argue this till they’re blue in the face but in the complete absence of precedent it’s impossible to say how courts would rule. It does seem to me that there are various middle grounds between “keep him in solitary” and “set him free” that a court might require, such as house arrest, mandating access to certain officials, etc.