If Trump were to win election before he’s tried for his current federal indictments, and for whatever reason doesn’t pardon himself, could the trial resume on Jan 20,2029? The statute of limitations doesn’t apply to someone who has already been indicted and hasn’t gone to trial because of legitimate delays, right?
Bonus question: if he did pardon himself, could a prosecutor hired in the next administration say, fuck that, let’s test it in court?
Uncharted waters. Anything goes.
Don’t forget Georgia is planning(?) state charges, which the prez cannot pardon. And the logic - as ultimate head of the executive branch, he can’t be tried during that term because he is “trying himself”. That logic does not apply when the state tries the president.
My first question is about the statute of limitations. Basically, that only applies to indictment, correct? Once you’re indicted, it’s only a matter of making sure your Sixth Amendment right to a speedy trial isn’t violated which if you move for a continuance and then are elected POTUS would not apply, right? You can’t run the clock out by being president, can you?
IANAL but yes.
Proceedings in this case means indictment, not trial, right?
Remember, Trump is involved in more than one criminal trial. And at least one is staying in state court which means Trump cannot pardon himself (if that were possible):
According to Wikipedia:
In rarer cases, such as the pardon of Richard Nixon, a pardon can also halt criminal proceedings and prevent an indictment, though this has not been tested in court.
So Trump’s situation is covering new ground: it’s unclear whether a President can pardon themselves, and it’s unclear whether criminal prosecution can still proceed after a pardon (although if it can, I’m not really sure what a pardon means anymore).
Assuming Trump becomes President, who can he fire?
I’m thinking the Department of Justice, the FBI, judges (hopefully not) and police chiefs etc.
AFAIK (federal) judges can only be impeached - same as the president. Ths is the only way to remove them. The house must vote by majority to impeach, and then after a trial, the senate must vote 2/3 in order to terminate their judgeship. (And the president has no say over state judges).
(Note that federal judge positions are approved by congress from nominations provided by the president, wheter supreme or lower courts.)
… And police chiefs are not under the federal executive branch.
That’s if Trump follows the rules. Do you rally think he will do that? Do you think when he violates the rules, the GOP members of Congress will stand up to him?
I’m pretty sure a group of armed fanatics could “remove them from office” pretty easily, if the actual police are ordered to stand down.
If Trump were to win election before he’s tried for his current federal indictments, and for whatever reason doesn’t pardon himself, could the trial resume on Jan 20,2029?
There is an argument under the Constitution that the the Department of Justice can’t prosecute the President. There is somewhere between little and nothing in the Constitution that directly supports this but the DOJ has twice written memos saying it’s true and some reasonable lawyers and judges believe it. There are, of course, conflicts of interest if a person who works directly or indirectly for the President is in charge of prosecuting the President. So, perhaps the prosecution could not proceed while he was being prosecuted by his own DOJ.
I was trying to think whether there was authority for a District Court to appoint an independent prosecutor but I don’t think there is. There is statutory authority for a District Court to appoint a US attorney when the President has left the job vacant but (1) some people still question whether this is Constitutional, although it has been upheld, and (2) everyone agrees that the prosecutors a District Court judge appoints still work for the DOJ and can be fired or replaced by the President, so that authority doesn’t work to create a truly independent prosecutor.
The statute of limitations doesn’t apply to someone who has already been indicted and hasn’t gone to trial because of legitimate delays, right?
I think your question about “legitimate delays” is broader than I want to answer. Let’s just say that if the delay is to accommodate the defense’s request(s) for delay, granting that delay is not an abridgment of the defendant’s right to a speedy trial.
I would say yes because there is no case law on whether a President can grant himself a pardon and there is a colorable argument that he cannot. Prosecutors are allowed to present such arguments.
The President’s power in the Constitution is to “grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.” Currently unanswered legal questions include whether one can one grant something to oneself or only to another person. Further, would a grant from himself be an emolument, which is elsewhere prohibited to the President by the Constitution? Depending on the very specific wording of the pardon, which we can’t know of course, perhaps a prosecutor could argue that the scope of the pardon doesn’t cover the conduct described in the indictment. The answers to these questions might be that the President can and did pardon himself but those questions can only be tested in court by a prosecutor trying to prosecute him. These are, however, questions of law that could be decided by a judge before a jury trial commences.
I agree that all precedent to date of which I am aware agrees this is true. But we’ve never had a state try to prosecute a sitting president and I have extraordinarily little doubt that this Supreme Court would find that the Supremacy clause protects a sitting Trump from prosecution by a state; otherwise any state could disrupt the operations of the executive branch with malicious prosecution. I have much less belief that the court would find the same were, let’s say, Texas to decide to prosecute Biden for…reasons.
Well if it boils down to “the rules don’t matter, send in the clowns and remove the fellow forcefully”, then all bets are off. Even peoples’ republics pretend to follow the rules.
What was the situation for the FDNY? I think it was that the guy Trump fired/resigned was appointed as an interim appointment, and the constitution gave the president/AG the right to replace a DA confirmed by congress, but technically not one appointed as an interim recess appointment, or some such.
The special counsel could be appointed by the AG, I think - meaning if the AG had a tiny backbone, there could be a special counsel the president could not fire.
I guess it boils down to - would the supreme court overrule a warrant or such for the president? Keep in mind, they cannot be replaced, they are pretty much secure for life. They owe any president nothing, they may have religious/ideological inclinations but none have a deep desire to protect any person in the executive. If the president goes down, then presumably a cleaner less contentious VP, same party, takes over so the Supremes really don’t care. They would rule on the validity of the warrant - ie. they would overrule a kangaroo court warrant but not a legitimate case. If not, if that many have swallowed the koolaid, then all bets are off and technicalities of the rules don’t matter.
If there is a vacancy, a federal court can appoint someone who serves until the vacancy is filled. If a court prosecuting Trump appoints an independent prosecutor, Trump will just name someone to fill the position. Trump can name any person who has been confirmed by the Senate for any role.
The special counsel could be appointed by the AG, I think - meaning if the AG had a tiny backbone, there could be a special counsel the president could not fire.
But this person reports indirectly to the President and the Trump will only name as AG someone who has insufficient backbone to do such a thing.
There are studies showing that if a drug company gives a doctor a pen, they will prescribe the company’s medications more. If you give a lawyer a lifetime appointment to be one of the most powerful and unaccountable people on earth, I presume their gratitude is a bit higher. Conservatives on the court also want more like-minded conservatives on the court (not like that wishy-washy Roberts) and they want their clerks and friends to be appointed to the lower courts. Republican Supreme Court justices also want to be accepted into the society of Trump-loving sycophants whose members give them awards, houses, luxury trips, and ego strokes. Republican Supreme Court justices have plenty of reason to do what Trump asks.
[Moderating]
A reminder that this thread is in Factual Questions. While it is certainly closely adjacent to many political issues, there are still points of fact to be discussed here, and so I would rather not move this to P&E. That does mean, though, that posters should tone down the political rhetoric.
No they don’t. They’re set for life. They got where they are mostly due to academic prowess less than by politics. They are sufficiently self-assured of their own accomplishments that they really really don’t care - they certainly don’t see certain politicians as being on their intellectual level and worthy of their syncophanitc adulation. That’s for people who need to win primaries and collect donations.
The court membership was picked for its analytical smarts as much as for it’s inclinations toward social issues. (Except Kavanaugh maybe). We’ve already seen them in 2020 basically say that they don’t care to overrule voters’ decisions. I would be more worried if there were a risk of a 67-member majority in the senate.
So to cycle back to the OP, the ultimate arbiter of whether a state warrant can be enforced would be the Supreme Court. I would suspect they would judge the case on its merits - is the charge and conviction real or (sorry) trumped-up?. There’s only one way to see what they decide, but there’s nothing magical about being president, as the court above Judge Cannon has already ruled.
I would hazard an educated guess they would let a real conviction stand, and simply say “this is one of those situations where the VP will have to stand in for the president until his sentence is over, since he cannot do his duties” if the state enforces the visitor and communication rules. Then it would fall to the state to decide what to do. Maybe like Epstein’s sentence in Florida, they can let him out 12 hours a day to “do business”.
We’ve obviously strayed far from any FQ answer, but:
In his 1833 Commentaries, Joseph Story opined that “There are … incidental powers, belonging to the executive department, which are necessarily implied from the nature of the functions, which are confided to it. Among these, must necessarily be included the power to perform them, without any obstruction or impediment whatsoever. The President cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office.”
I don’t think that SCOTUS would overturn an otherwise constitutionally-proper state conviction on the basis that they’ve concluded it isn’t “real.”
I don’t think that SCOTUS would effectively remove (or permit a state to remove) the president from office (who cannot be temporarily or permanently removed by a court under any circumstance).
It think it’s a fairly straightforward application of the Supremacy Clause and the “Take Care” Clause to reach Justice Story’s conclusion (which I think it correct) if, in fact, a state prosecution renders the president unable to “do his duties.”
Maybe. I don’t see this.
I guess it would perhaps come down to a situation not unlike Brown v Board of Education where federal powers and state powers face off against each other. The question would be whether the federal authorities, if military, could consider an order to stop state troopers as an illegal order. Or Secret Service - could the state troopers arrest Secret Sevice for obstruction?
May you live in interesting times…
If you don’t get Story, then if you’re able, I’d invite you to skim Akhil Amar’s short 1997 article on the subject. Which I think makes the argument well and certainly more comprehensively than I’m going to try to do here.
This is not a new question.
I agree with the first part of your post, that the Supreme court don’t feel themselves in any way beholden to Trump, but I disagree that they would let an elected president be incarcerated by the courts. There is a lot of constitutional law spelling out the immunity from prosecution that the president and members of congress enjoy.
The idea of the founding fathers is that the wisdom of the people and by extension their elected representatives to keep elected representatives in line. If the people want to elect a criminal to lead them then that is their preogative. If there was criminal wrong doing that came to light while he is president then the Congress should impeach him. (rant about current political climate and its effect on the soundness of this reasoning omitted due to forum rules)
Given the support of a unitary executive has with the federalist society from which the majority of justices were chosen, I think that they are likely to protect him.