Donald Trump for the second time this month has been indicted on charges related to 2020 election subversion, this time in the state of Georgia – a stunning fourth time this year that the former president has faced criminal charges.
But could the former president, who remains the front-runner for the 2024 Republican presidential nomination, assume the Oval Office again if convicted of the alleged crimes? In short, yes.
University of California, Los Angeles law professor Richard L. Hasen – one of the country’s leading experts on election law – said Trump still has a path to the presidency should he win reelection in 2024.
“The Constitution has very few requirements to serve as President, such as being at least 35 years of age. It does not bar anyone indicted, or convicted, or even serving jail time, from running as president and winning the presidency,” he said in an email to CNN earlier this month.
Legal experts have pointed to the 14th Amendment as a way to keep Trump from holding office if he is convicted, which includes a “disqualification clause” that bars anyone from holding public office if they “have engaged in insurrection or rebellion” or “given aid or comfort to the enemies thereof.”
“There’s a big open debate over whether that element of the 14th Amendment is self-executing, and then open to judicial enforcement or whether Congress would need to pass legislation to enforce that provision. And that’s a debate that the legal academies are currently having now, we have no answer for that,” said Anthony Michael Kreis, an assistant professor of law at Georgia State University.
“But to the extent that there might be a conviction in Georgia or in Washington, DC, for these election related crimes,” Kreis said, “I think that that’s another big open question about how these charges might relate to [Trump’s] ability and his eligibility to hold the office of the presidency.”
John Dean reacts to Georgia election interference indictment
As part of special counsel Jack Smith’s investigation into alleged 2020 election interference, Trump was charged in early August with: conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights.
Those are in addition to a total of 40 counts in a separate federal indictment related to the special counsel’s investigation into the mishandling of classified documents.
Timelines for the federal cases against Trump remain unclear, but if he was to be elected president before a trial concluded, a Trump Justice Department may be able dismiss a case entirely.
Robert Ray, an attorney who defended Trump in his first impeachment trial, said on CNN following Trump’s June indictment in the classified documents case that the former president “would control the Justice Department” if reelected, adding that if the documents case was pending at that time, “he dismisses the case.”
Self-pardoning remains an open question because no president has tried it. The Constitution, though, doesn’t expressly forbid it in writing. And while there was a legal memo written by the Department of Justice’s Office of Legal Counsel just days before Richard Nixon’s resignation in 1974 that argued a president could not self-pardon, that’s a legal opinion, not law.
Trump in 2018 claimed in a social media post that he could pardon himself as president, at the time referring to the investigation by then-special counsel Robert Mueller.
So, if Trump were to be convicted before the 2024 election and win the contest, he could try to grant himself a pardon, according to Hasen.
“Whether he can do so is untested. The Supreme Court may have to weigh in,” Hasen said, adding that Trump could potentially appeal a conviction to the conservative Supreme Court.
Charges Charges were brought against Trump and 18 co-defendants in a sweeping investigation led by Fulton County District Attorney Fani Willis. The indictment alleged they “joined a conspiracy to unlawfully change the outcome” of the 2020 election.
The charges in the sweeping 41-count indictment include: False statements to and solicitation of state legislatures; false statements to and solicitation of high-ranking state officials; the creation and distribution of false Electoral College documents; the harassment of election workers; the solicitation of Justice Department officials; the solicitation of then-Vice President Mike Pence; the unlawful breach of election equipment; and acts of obstruction.
That’s in addition to the 34 felony criminal charges of falsifying business records in Manhattan related to an alleged hush money payment scheme and cover-up involving an adult film star.
As president, Trump could potentially direct his attorney general to shut down the federal prosecutions, but that presidential power doesn’t extend to the state level.
“We’re in a federal system where the states are independent, and Fani Willis is an elected official, so he would have no control over her,” Georgia State law professor Clark D. Cunningham told CNN.
Trump and his supporters in Georgia may have some longshot options available to them, Cunningham said, including launching impeachment proceedings against Willis in the state’s House and Senate – though, he said, any effort is unlikely to gather the two-thirds vote in both state legislative chambers needed to remove Willis from her position.
“But that doesn’t mean that they won’t, for the purposes of political theater, start that process. And I think you could almost guarantee it would happen,” Cunningham said.
Trump allies could also look to utilize a new law signed by Kemp in May that established a Prosecuting Attorneys Qualifications Commission, “which would have the power to investigate and discipline or remove elected district attorneys or solicitors-general in specific instances, including if they are consistently not fulfilling their duties as such,” according to a Georgia Senate news release. That commission cannot meet before October 1, 2023.
Cunningham said he expects that “by October 2, the commission will have received at least one – anyone can file a complaint – received at least one complaint asking it to investigate and remove Fani Willis.”
While both efforts to remove Willis are unlikely to succeed, if one did, Kemp has the power to fill the vacancy with a new district attorney who could continue the case, Cunningham said.
“What might Trump do if he was required to show up for trial in Georgia? Would he declare martial law and just refuse to show up? The imagination probably doesn’t exhaust all the possibilities,” Cunningham said.
Kreis pointed out Trump may also again attempt to have his case in Georgia moved to federal court, using the argument his crimes related to his role as president – which he tried, and failed, to do in New York.
Presidential pardoning powers only extend to federal crimes, meaning Trump wouldn’t be able to pardon himself if convicted of crimes in Georgia or New York after becoming president.
New York’s Gov. Kathy Hochul does have the power to pardon felonies, though such a show of support for the former president is highly unlikely from the Democratic governor.
Pardoning power in the state of Georgia, however, is out of the hands of its governor. That means Republican Gov. Brian Kemp – who was himself contacted by Smith in the federal case against Trump after the former president pushed Kemp to overturn the 2020 election in the state – couldn’t move to wipe the charges against Trump.
That power in Georgia belongs instead to the State Board of Pardons and Parole, which can’t issue pardons for felony convictions until five years after the full sentence of the conviction has been served, according to Kreis.
“There will be no option to commute or pardon the prison term at all, so yeah, he’s stuck,” Kreis said.
Could a president serve from prison? That’s less clear.
“How someone would serve as president from prison is a happily untested question,” Hasen previously told CNN.
If Trump is convicted of a felony at the federal level, in New York or in Georgia, he would be barred from voting in his adoptive home state of Florida, at least until he had served out a potential sentence.
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