Below is my column on how the upcoming election could play out with three different criminal cases in New York, Georgia, and Washington, D.C. This morning we are reading new leaks from the Justice Department’s grand jury investigation. It is another disheartening example of intentional leaks in violation of federal law and DOJ policies. The federal judge in the case seems entirely unconcerned about the violations that are clearly meant to undermine former president Donald Trump and pressure witnesses.
Here is the column:
The 2024 presidential campaign technically began months ago with the first announced candidates. Yet April 4 will be “Super Tuesday” for America’s first carceral presidential campaign, with the arrest and arraignment of Donald Trump. With the exception of the socialist (and incarcerated) Eugene Debs in 1920, we have not faced the prospect of a president who could be elected with both a term of office and a term of imprisonment.
The New York indictment of Trump has been widely criticized as politically motivated and legally flawed. Manhattan District Attorney Alvin Bragg boasted during his 2021 campaign about being best suited to go after Trump, and he is making good on his boast with a highly dubious bootstrapped legal theory.
The New York indictment will face considerable challenges. Those challenges will likely take some time to resolve, and if this case follows the customary schedule of criminal matters, it still may be pending when Americans go to the polls to select the next president in 2024.
In addition, a Georgia grand jury reportedly has finished its work on other charges against Trump. Weeks ago, Emily Kohrs, the forewoman of that special grand jury, gave a series of bizarre giggling interviews about nailing Trump. It is a mystery, given Kohrs’ apparent confirmation of pending charges, why Fulton County District Attorney Fani Willis has held back on an indictment.
Although stronger than the Manhattan case, the Georgia case has its own problems but could make it to trial because those problems are largely fact questions generally left to jurors. But it too would likely be pending by Election Day 2024.
The most serious threat among the potential cases is being developed by Justice Department special counsel Jack Smith. His investigation of Trump’s role in the Jan. 6, 2021, Capitol riot is unlikely to result in charges and, if it does, is unlikely to survive challenges on First Amendment grounds. His investigation of the Mar-a-Lago classified-documents controversy presents a far more established — and, frankly, easier — route for prosecution. From its earliest filings, the Justice Department maintained there is evidence of obstruction and false statements — claims that it could use to distinguish any prosecution from the unlawful possession of classified material by President Joe Biden or former Vice President Mike Pence.
Smith is under a tight schedule if he wants to charge Trump, though. Since the Justice Department (incorrectly in my view) maintains that a sitting president cannot be indicted, Smith would have to charge and, ideally, try Trump before Election Day. Indeed, the Justice Department strives to avoid any major legal steps that might impact voting near to an election — a period that could stretch back to the late summer of 2024.
What this means is that Trump could face as many as three sets of criminal charges in three different jurisdictions as he campaigns for the presidency. He would likely seek accommodations from courts to delay any trial during the campaign.
Whether or not Trump can delay a trial, much of 2024 will be focused on carceral rather than political issues. Trump has long claimed that Democrats are weaponizing the criminal justice system against him and other Republicans. Bragg has given him the case positive for proving that allegation, especially since Bragg ran for office on his ability to find a criminal charge against Trump.
The question is what happens if any of these efforts succeed.
I previously raised the prospect of an actual indictment in converting the election into a debate for presidential self-pardons. Article II of the Constitution states that a president may “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” There is no language specifying who may or may not be the subject of a pardon, and presidents have abused the pardon power to protect political allies and even family members.
Numerous legal analysts have argued those constitutional provisions “make no sense if the president could pardon himself.” Yet it seems highly doubtful that courts would agree. Despite the massive gravitational pull of Trump on the legal analysis of many pundits, there is nothing in the Constitution to exclude presidents alone from pardon eligibility. The Supreme Court stated in Schick v. Reed that “the pardoning power is an enumerated power of the Constitution and … its limitations, if any, must be found in the Constitution itself.”
While a newly elected Trump could only pardon himself for the federal crimes, it is the federal case that likely represents the greatest threat to him. Moreover, the two state cases would add to Trump’s narrative of facing ‘political prosecutions’ from a ‘weaponized’ legal system on every level. Trump often campaigns on just such a primal level. He knows that a man chased by a dog can spark public outcry — but a man chased by a pack of dogs can spark public outrage.
It is not simply the election that could take a carceral turn, however.
What would happen if Trump were elected but convicted in either state case? Such a trial would likely occur after the election. Even if courts extended a trial until after the 2024 election, it would be difficult to delay it for four years.
The last time a president faced the threat of a criminal trial was in 1872, when Ulysses S. Grant was arrested for speeding in his horse-drawn carriage in Washington.
I have long maintained that a sitting president can be indicted and tried. Almost 25 years ago, I wrote an academic work, “‘From Pillar to Post’: The Prosecution of Sitting Presidents,” that challenged immunity theories protecting presidents. I do not believe the indictment of a president or former president is a national tragedy. To the contrary, it is the ultimate affirmation that no one is above the law.
However, that doesn’t mean it wouldn’t get weird if Trump loses in court but wins in the election.
If Trump were convicted in a state proceeding, it would not bar him from running — or serving — as president. A state judge could grant probation or an alternative sentence to avoid imprisonment. Moreover, appeals on the issue of incarceration could take years to address a state order conflicting with the performance of a federal function. Once that time was exhausted, a court could order any incarceration to be delayed until after the end of the presidential term, since Trump could not be elected a third time.
We may have to face one of these scenarios. The question is whether voters may not only accept this prospect but some might even invite it. Regardless of how it works out, this election is about to take a carceral turn.
Elections often raise the politics of crime — but in this election, it may be hard to separate the politics from the crime.
Jonathan Turley is the Shapiro Professor of Public Interest Law at The George Washington University. Follow him on Twitter @JonathanTurley.
397 thoughts on “Trump’s Legal “Super Tuesday”: The Trump Arrest Will Start One of the Most Bizarre Presidential Elections in History”
Just when I thought yesterdays events marked a final and dark turning point for our country, up pops a great read that actually gives me confidence there is another turning point in our future to make things right again.
A Fourth Turning is a period in history when all the negative developments over a four-generation period reach a crescendo – a time when the sociopaths are the rulers and are putting the squeeze on the populace.
In addition to an effort to institute totalitarian rule, symptoms include the breakdown of both morality and logic. Black is white; up is down. Confusion and chaos increase in both frequency and magnitude as the Fourth Turning advances.
Those of a libertarian mindset tend to be especially sensitive to and cognizant of these symptoms as they unfold. Since a classic Fourth Turning takes place over roughly twenty years, by the time the halfway mark is reached and the symptoms are peaking, it may appear that “It just keeps getting worse. Won’t people ever wake up and understand that this is crazy?”
They might have a better case if they charged Trump for violating campaign finance laws by him showing up at Bragg’s unofficial Trump fundraising event today. Is Trump responsible for reporting all the in-kind donations he is receiving from the MSM free publicity?
***Just a shout out of thanks and appreciation to Professor Turley for this blog and the freedom of speech we have here in the comment section. It is like a pressure valve release on some days like today. Thank you sincerely for providing this blog and for all you stand for. We need your voice, your moral clarity, and your integrity more than ever. ***
The Dems took their shot and it was a huge miss. Now Republicans need to come back with a solid criminal case against one of theirs. Hit them hard and do it now.
HIT THEM HARD AND DO IT NOW.
Did you hear that you cowardly weak cowering Republicans?
This is war.
Bradley A. Smith, one of the nation’s leading experts on elections laws, provides a clear explanation for why the New York City case against Donald Trump is bogus and meritless. (See the link below.) Alvin Bragg on the other hand, knows nothing about the election laws that are core to his purported allegations.
Bragg should be prosecuted and lose his law license.
Prosecuted for what? Umm, following the Rule of Law?
The Democrats aren’t intelligent enough to know this until it bites them in the ass, apparently.
Thanks for your integrity, I know it’s been tough.
The prosecution of Trump is textbook TERRORISM. The hot dog in a suit DA is using state violence to silence opposition. Everyone watch out. Garland and Wray see it didn’t work, doors of conservatives are going to be kicked in soon!
terrorism: noun, the unlawful use of violence and intimidation, especially against civilians, in the pursuit of political aims.
We’ve moved on from Orwell to Kafka. This is what progressives mean by progress.
I opt for Lord Henry Wotton in Oscar Wilde’s philosophical novel: “The Picture of Dorian Gray”:
“I believe that if one man were to live out his life fully and completely, were to give form to every feeling, expression to every thought, reality to every dream–I believe that the world would gain such a fresh impulse of joy that we would forget all the maladies of mediaevalism, and return to the Hellenic ideal–to something finer, richer than the Hellenic ideal, it may be. But the bravest man amongst us is afraid of himself. The mutilation of the savage has its tragic survival in the self-denial that mars our lives. We are punished for our refusals. Every impulse that we strive to strangle broods in the mind and poisons us. The body sins once, and has done with its sin, for action is a mode of purification. Nothing remains then but the recollection of a pleasure, or the luxury of a regret. The only way to get rid of a temptation is to yield to it. Resist it, and your soul grows sick with longing for the things it has forbidden to itself, with desire for what its monstrous laws have made monstrous and unlawful. It has been said that the great events of the world take place in the brain. It is in the brain, and the brain only, that the great sins of the world take place also.”
How can you not have contempt for the Democrat Party after today’s stunt?
So true: “The Democratic party of today is a gang of thugs.”
Lawless. Unethical. Immoral. Unhinged. Sociopathic liars.
A bunch of Nasty mutherfukers hell bent on destroying everything this country stands for by any means necessary.
And those of you who think this is just about Trump do not understand the situation.
Barr reports in his memoirs that, despite his campaign rhetoric, Trump did not push for Hillary’s prosecution because he knew it would be bad for the country. Those taking glee in what’s happening, who know no such scruples, have the distinction of being even pettier than Trump.
Part of the reason we have an increasingly politicized legal system is that the lawyers and judges are getting dumber. It’s not only that they’re political and acting politically – it’s that the notion of objective justice is something they don’t even understand.
DEI is making them even dumber.
Still can’t get over that MSM made lists of all Trump’s ‘lies’ – which were usually exaggerations, jokes or trolling – while it publicized intelligence agency hacks [50 of them!] all claiming the Hunter Biden laptop was misinformation – those were real lies, and significant.
Trump: “Our justice system has become lawless. They are using it now…to win elections.”