Donald Trump’s 2024 campaign for the White House is about to collide with an 1892 Supreme Court decision and a federal criminal trial rule, setting up a spectacular legal clash that the framers of our Constitution could never have imagined.
As the subject of two federal grand jury investigations, Trump faces the prospect of running his presidential campaign—whether as the Republican Party nominee or an independent—from the defense table in a federal courtroom in Washington, D.C.
If you’ve followed Trump’s legal tactics closely—as I have for decades—gaming out this situation isn’t difficult.
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Trump will ignore his right to a speedy trial starting within 100 days of any federal indictments. Instead, following the advice taught by his “second father,” the notorious lawyer Roy Cohn, Trump’s strategy would likely be to delay using every tactic his legal team can conjure.
Trump’s lawyers would also almost certainly argue that any criminal trials should be delayed until after the 2024 election, leaving Trump free to pursue the presidency.
Should these delays tactics succeed, and were Trump to regain the White House, he could then pardon himself and his allies for any federal crimes they may have committed.
That, in turn, would surely be challenged in a case that the Supreme Court, three of whose nine justices Trump appointed, ultimately would have to decide.
The question that would be presented to the high court: Can a president pardon himself? And should the high court invalidate a self-pardon, a new question would emerge: Can Trump be tried while in office?
The answer to one further question is clear. Were Trump to be convicted of any felony charge and regain the White House, could he serve as president?
The answer to that is yes.
Nothing in our Constitution would prohibit a felon, even one serving time, from holding the office of president. However, Trump could be removed were he impeached by the House and then convicted by 67 senators. Whether those votes could be mustered is unknowable today.
The only exception would be if Trump were convicted of seditious conspiracy. That law makes it a crime for two or more persons to “conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof…”
Anyone convicted of seditious conspiracy is barred from ever holding public office, as Couy Griffin—a New Mexico county commissioner and convicted Jan. 6 insurrectionist—learned last September when he became the first official removed from office under this law since the Civil War.
Amid this unprecedented legal turmoil, Trump is currently the odds-on favorite to win the GOP presidential nomination a third time. Arguably, the prosecutions have only deepened Trump’s relationships with the party base and forced his would-be rivals, like Florida Gov. Ron DeSantis and former Vice President Mike Pence, to attack the integrity of the cases built against him.
While Trump’s legal defenses—and his desire for the immunity and powers of the presidency—will be under the microscope like never before, those attempting to hold him accountable will face enormous scrutiny themselves.
Few will face more pressure than special prosecutor Jack Smith. Appointed by Attorney General Merrick Garland last year, Smith has two federal grand juries investigating Trump. One is looking into national security secrets he stole and then had his lawyers deny he possessed; the other is investigating Trump’s role in inciting the failed Jan. 6 coup.
Each day that passes without Smith asking grand jurors to return an indictment, known as a true bill, it heightens the issues over a criminal trial delay and Trump’s desire to campaign freely.
The federal judges assigned to try these cases would also face enormous pressure over how to resolve conflicts between Trump’s campaign, and potentially his second presidency, and the absolute rules governing the conduct of felony trials in federal court.
At issue is Rule 43 in federal criminal procedure, which requires that felony defendants attend their trials.
Trump skipped out on the trial now underway in federal District Court in Manhattan, in a case brought by the journalist E. Jean Carroll. In her 2019 memoir What Do We Need Men For? A Modest Proposal, Carroll wrote that, in 1995 or 1996, Trump raped her in a lingerie dressing room of the Bergdorf Goodman department store across the street from Trump Tower in Manhattan.
Trump called Carroll a liar and labeled her accusation a hoax. Carroll then sued for defamation. Because the trial is civil rather than criminal, Trump’s attendance was optional.
Under Lewis v. United States, an 1892 Supreme Court decision which formed the basis for Rule 43, Trump would be required to attend every minute of his trial.
The high court held in Lewis that a “leading principle that pervades the entire law of criminal procedure” is that once an individual is indicted “nothing shall be done in the absence of the prisoner… in felonies it is not in the power of the prisoner, either by himself or his counsel, to waive the right to be personally present during the trial.”
That standard applies even if Trump were free on his own recognizance or on bail.
If he tried to boycott the trial, he would be arrested and held in custody until the trial ended.
A similar attendance rule applies for criminal trials in New York, where Trump was indicted last month on 34 felony counts connected with hush money paid in 2016 to Stephanie Clifford, better known as the porn star Stormy Daniels. The mandatory attendance rule also applies in Georgia, where Trump is under investigation by Fani Willis, the Fulton County district attorney.
So, would Trump’s already announced campaign enable him to delay a trial? If he succeeds and becomes president again, would that further delay any proceedings? What if he pardoned himself?
I put the first question to Daniel Richman, a former federal prosecutor in the Southern District of New York who now teaches at Columbia University Law School. “There certainly is no built-in extenuating circumstance exception for such things as running for president,” Richman said.
Richman said it is “fair to assume that should Trump be indicted, the prosecution would press for a speedy trial and presumably has made efforts to accommodate an accelerated discovery schedule” for turning over evidence that might exonerate him.
But even if the prosecution immediately turned over so-called Brady material—named for a 1963 Supreme Court decision requiring prosecutors to disclose exonerating information—it could still potentially help Trump win delays.
A prosecutorial “push for speed may not be accommodated by a court and the discovery materials that might be speedily turned over may be of the sort that allow defense counsel to reasonably say, ‘I need time to look through all of us,’” resulting in delaying a trial,” Richman said.
Those are basically the same points I made this week to my students at Syracuse University College of Law, where I’ve taught legal principles since 2009.
The federal judge assigned to any Trump criminal trial would for sure be aware that Trump has dangled pardons in front of potentially problematic witnesses, has pardoned allies for federal crimes, and has said he believes he has the power to pardon himself.
Indeed, it’s entirely possible that Trump pardoned himself during his last days in office but made no public disclosure. He might have done this in a written document that he alone holds. Trump might also assert that, as with his claims that he can declassify national security documents by just thinking it in his mind, that he issued a mental self-pardon.
It’s hard to imagine the federal courts upholding a pardon that exists only in Trump’s mind.
However, if Trump produced a signed pardon, it would surely prompt litigation over whether a president’s almost unfettered power to grant pardons extends to the president himself.
Were the Supreme Court to uphold a self-pardon, it would be a serious challenge to the rule of law. Why? Because a president could go around shooting people, as Trump said he could do on Fifth Avenue without losing a vote, and never be prosecuted for murder—much less any of what our Constitution calls “high crimes and misdemeanors.”
For anyone who wants to hold the title of President of the United States while behaving as America’s unaccountable dictator, that would be a dream come true.
