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Published in , 18 September 2023.
Written by Dr Thomas Gift and Dr Julie Norman.
Photo by on .

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Donald Trump has notoriously become the only former US president to face a criminal indictment 鈥� much less four. Opinions on the prosecutions, predictably,听. But whether one subscribes to the Trump as victim or villain narratives, the high-stakes charges raise profound legal and political questions. Here鈥檚 what鈥檚 at stake.

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Can a president be indicted?

The US constitution听听the criminal prosecution of a current president, and supreme court听听(in United States v Nixon) makes it clear that the executive is not above the law. However, since 1973, the Department of Justice (DOJ) has maintained a听听() against prosecuting an incumbent on the grounds of not undermining the听听of the office.

Congress possesses the ability to听听federal officials for crimes of treason, bribery, and 鈥渙ther high crimes and misdemeanors鈥� and remove them from office. Impeachment 鈥� unlike an indictment 鈥� is primarily a听. It鈥檚 designed to hold presidents accountable for grievous breaches of power, but it happens outside the jurisdiction of the courts.

No similar DOJ restrictions exist on indicting a former president. Nixon v Fitzgerald holds that the president enjoys immunity from听听related to the duties of office (as do members of Congress). But this does not apply to criminal indictments. Still, because precedent on the question is limited, expect Trump to make a case for听.

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Should a current presidential candidate face indictment?

Trump鈥檚 run for the White House again in 2024 complicates the legal terrain. The DOJ has a longstanding norm of avoiding politically sensitive indictments near election cycles (typically, within 60 to 90 days of Americans听). It鈥檚 one reason why US attorney general Merrick Garland听听to avoid a Trump indictment in the run-up to the 2022 midterm elections.

As expected, Trump and his GOP allies have framed the DOJ鈥檚 prosecutions as 鈥溾�� and an effort to knock out current US president Joe Biden鈥檚 most likely opponent next year. They鈥檝e similarly听听the indictments for trying to distract from the legal woes of the president鈥檚 son Hunter Biden, who now faces a听.

Garland tried to mitigate concerns of politicisation by delegating to special counsel, Jack Smith, the decision on whether to indict Trump. However, because Smith听, and the DOJ sits within the executive branch, it鈥檚 impossible to avoid the appearance of partisanship. For his part, Biden has听听discussing Trump鈥檚 cases publicly.

DOJ听听hold that prosecutions should serve the听. Considerations include the gravity of the alleged offenses, the level of culpability, potential deterrent effects, likely consequences of a conviction, and any unique circumstances.

In addition to听听that Trump鈥檚 indictments are politically motivated, Republicans voice concerns that they will further divide the country.

The DOJ (and New York and Georgia prosecutors) have held that their indictments serve the public interest of maintaining the rule of law and protecting the integrity of US institutions. Yet sceptics suggest that this is essentially tautological. The public interest caveat becomes moot if any prosecution can be linked back to a 鈥渓aw-and-order鈥� justification.

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Can an indicted or convicted candidate run for president?

Neither the constitution nor US legal precedent prevents a candidate from running for office due to an indictment 鈥� or a conviction. Candidates can even run (though not vote in most states) while incarcerated. In 1920, socialist听听infamously received nearly one million votes 鈥� about 3% of the popular vote at the time 鈥� when he ran for president while in jail.

Some states听听convicted felons from running for office, but these statutes only apply to state and local positions, not federal. Running a campaign or serving as president from jail would pose untold challenges, but it鈥檚 not prohibited. An indictment alone can鈥檛 disqualify a politician from being elected because all defendants are 鈥渋nnocent until proven guilty鈥�.

Some legal analysts听听that Trump should be ineligible for the presidency due to听, which prohibits anyone who has 鈥渆ngaged in insurrection of rebellion鈥� or 鈥済iven aid or comfort to the enemies thereof鈥� from holding public office again.

But the election interference charges against Trump don鈥檛 align exactly with insurrection. If convicted, disqualification would be subject to extensive debate.

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Can presidents self-pardon?

Timelines for Trump鈥檚 trials remain unclear, and possibly more delays and appeals are ahead. Deference goes to the defendant in criminal cases, even if government lawyers prefer speedier trials. If prosecutions are still ongoing, and if Trump is elected, he could dismiss the federal cases (though not the state-level cases) because he will control the DOJ.

The question of a self-pardon is trickier. A president has no pardoning power of any kind over state-level convictions. But the constitution does not expressly forbid a self-pardon at the federal level, although many听听believe that it would violate the precept of 鈥渘ot being the judge in your own case鈥�. The DOJ听听prior to Richard Nixon鈥檚 resignation that a president could not self-pardon, but the memo is an opinion only and听.

At least some of Trump鈥檚 current Republican presidential primary opponents, most vocally听, would consider a pardon if elected. Various commentators have made the case that听, if re-elected, should do the same. In 1974, then president Gerald Ford听听Nixon, which was controversial at the time but largely听听in hindsight. A pardon of Trump, by a Democrat or a Republican, would doubtlessly prove even more fraught.

By all current听, 2024 is likely to see either Trump or Biden re-elected. But whoever wins may be a pyrrhic victory unless the US is able to restore faith 鈥� from both parties 鈥� in elections and rule of law.

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