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UPDATE (June 8, 2023 8:30 p.m. E.T.): A federal grand jury in Florida indicted Donald Trump on Thursday on seven charges, including conspiracy to obstruct, NBC News reported.
While federal charges against Donald Trump may come any day now in the classified documents probe, it’s important to remember that a Trump 2024 presidential victory could, at the very least, imperil such charges.
Like many things Trump, we’d be in unprecedented territory if we elect a presidential candidate who’s under federal indictment — or even convicted. The prospect of any criminal case against a former president and current candidate fully playing out before the 2024 election is far from a sure thing, so the possibility of a federally indicted president is a real one.
What then?
Of course, we’d expect Trump to seize, by whatever means possible, the machinery of the Justice Department that’s prosecuting him. Recall that, during Robert Mueller’s special counsel investigation in Trump’s prior term, the department’s policy of not charging sitting presidents came to the fore.
The DOJ’s internal consideration of the issue was analyzed in the context of a president being charged while in office; one could be forgiven for assuming that the nation wouldn’t elect someone already charged. But the rationale underlying the policy — basically, that charges would interfere with a president being able to perform the job — could likewise apply to a president who takes office already charged.
And on top of whatever policy and practical considerations would jeopardize federal charges against Trump if he were to win back the White House, he could also weaponize executive authority by attempting to pardon himself. Such a constitutional crisis would put us in uncharted territory as well.
We know that Trump is willing to use clemency brazenly. Indeed, just as his election could upend any federal charges he faces, the same is true for cases related to the Jan. 6 insurrection, including recent seditious conspiracy convictions. Those cases, including any federal charges Trump might face himself for Jan. 6, could go by the wayside with his election. (His GOP rival Ron DeSantis has likewise mused about pardoning Jan. 6 insurrectionists.)
Importantly, Trump lacks similar power over any state charges he faces. Currently, that’s in New York, with his hush money case on felony charges set for trial next March. Charges in Georgia related to 2020 election interference are also possible, with Fulton County District Attorney Fani Willis apparently planning to announce her decision this summer.
So if federal charges are brought against Trump, it would be a mistake to ignore any state charges.
They could be the only ones left.
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