The Lawfare Podcast: A Criminal in the White House: How It Might Work and What It Might Mean

[Introduction]

Scott Anderson: But those sorts of compromises are going to be really around this idea, I suspect, of to what extent can the president be accountable after they leave the White House. While the president's in the White House, I'm pretty sure that at least for those areas where the president needs to be free to do his duties, and that's a lot of his time when he's in the presidency, you're not going to be able to get a state to actually, you know, hold him in a prison cell for God's sake.

Benjamin Wittes: I'm Benjamin Wittes, and this is the Lawfare Podcast, November 2, 2023. A few weeks ago, an organization that works in the democracy protection space asked my colleague, Scott Anderson, and me to come over and give them a little talk about what would happen if Donald Trump both got convicted and got elected.

We thought that was a pretty interesting set of questions so we prepared a little presentation on the subject. We went over and briefed them and then we were walking back and we said to ourselves, we should really turn this into a podcast because it's pretty interesting and so we did. There's a YouTube version of this with a little PowerPoint presentation, but this version we're going to try not to make reference to that.

We're just going to have a conversation about what happens when a president, it's never happened before, but what happens if a president gets indicted and then gets elected and how does the system respond. How does it respond if it's a federal case? How does it respond if it's a state case? How does it respond if the case is pending? How does it respond if the case is already wrapped up? We talk about it all. It's a lot of speculation. There's not a lot of law and it's the Lawfare Podcast, November 2: A Criminal in the White House: How It Might Work and What It Might Mean.

[Main Podcast]

We don't usually do wildly speculative podcasts, but this one isn't that wild a speculation since Trump has four pending criminal indictments against him and he's polling roughly even to Joe Biden right now. You know, over the next year, we could see any combination of his being elected president and his being convicted in up to four separate cases so it seems like it's worth at least having a conversation about what happens if, if those two events were to coincide.

So let's start, walk us through what our assumptions are going into this conversation. What we're, what we're working with and what our caveats are.

Scott Anderson: Absolutely. This is all very speculative, as Ben has already previewed. This is a really, really untested area of law, area of history. It would be pretty unprecedented if this were to take place. And we are still thinking through some of these issues and questions.

They are to say the least, issues of first impression. I wouldn't be surprised if we're wrong on some of this, if I'm being completely honest, and we invite people who disagree with us or have contrary views to share them with us. We, our hope is to have this start a bit of a conversation, but after some internal discussions in Lawfare and thinking about this among ourselves, this is kind of the best we came up with.

And you'll see there are a few spots where Ben and I disagree or reach at least, see way different possibilities differently. And so we'll get into that as we go along. The second thing to bear in mind is, as we said, there's really no law here. This is all unprecedented. This is all new. This is stuff that we haven't dealt with. So, so bear that in mind as we're going along here, we're drawing some inferences from some very broad parallel cases, but none of it's particularly on point.

Also, it's worth bearing in mind legally, the one thing we do know is that criminal indictment and conviction generally don't, and most likely can't actually disqualify anyone from the presidency. The Supreme Court has generally held that the prerequisites the Constitution installs for federal office can't be expanded by either the states or by Congress, that it's an exclusive list of constitutional requirements for eligibility for federal office. Technically, the Supreme Court has only reached that conclusion in relation to Congress, but the same logic, I think most people would guess applies to the presidency as well.

Benjamin Wittes: And can I just say on this-

Scott Anderson: Please.

Benjamin Wittes: It’s really important to distinguish the Section 3 of the 14th Amendment litigation from this issue, right. So Section 3 of the 14th Amendment, which most scholars think do and some scholars think do not apply to the president, for reasons we're not gonna get into now. But that is one of the, assuming it applies to the presidency, it's one of the qualifications.

Those are, that you got to be 35, you got to be a natural born citizen of the United States, you have to have lived here for a certain amount of time and probably, but not certainly, you can't have engaged in an insurrection having previously sworn an oath of allegiance to the United States, or an oath of office. We're assuming that you can't come along and add additional criteria, like you're convicted of a felony, you're out.

Scott Anderson: Exactly. There is one hypothetical exception to this that doesn't apply in this case. There are certain criminal statutes that I think some people probably correctly read as an implementation of Congress's authority under Section 3 of the 14th Amendment. So, title 18 of the U.S. Code, section 2381, 2383 are kind of the leading examples of this. That could be because they're using that special Section 3 power and are tied to insurrection or related sorts of offenses covered by Section 3.

You might have an argument saying, well, a violation of these actually could disqualify a president from office because it's this sort of post-Constitution, constitutional amendment carve out or exception to the general rule of exclusivity of the requirements. That's it. Just none of these provisions are actually at issue in any of former president Trump's cases. And so we don't really get into that here, but it's worth flagging that possibility.

The last kind of caveat and assumption I point out here is that because there is no real clear legal guidance. There's no clear rules, there's no clear precedents, even guiding how to think about this. Our kind of operational assumption is that a lot of federal and state courts, as well as other governmental institutions looking at this, are going to try and essentially balance competing equities. They're going to look at the situation and see, well, there's a lot of different things that the law and our government usually thinks are important that are kind of contradicting each other here. And they're gonna try and find a way to balance those. That could be wrong, but it seems like a reasonable institutional inference based on how these institutions tend to approach other conflicts in areas where there's not a lot of guidance.

And finally, based in part on the, on that same logic, the fact that this is going to be institutions trying to balance a bunch of competing equities and figure out a kind of muddy, muddled through a way forward. The ultimate outcomes likely be driven as much by political institutional considerations, as much as legal ones, perhaps not, if not more than legal ones, because again, there's no hard law here. There are different legal considerations, different historical points you could draw certain inferences from regards to precedent, but because there's no hard law, a lot of precedent, politics is going to enter it as well.

Benjamin Wittes: Yeah. And just to be clear, when Scott says politics there, we don't mean partisan politics or politics in the negative sense, so much as political judgment on the part of various institutional actors.

Scott Anderson: Exactly

Benjamin Wittes: All right. So let's start with the first effort to make this complicated, which is that it matters, for what law you're going to apply and what regime you're going to apply, when the conviction happens. So broadly speaking, before election day, which is Guy Fawkes Day, 2024, the regulatory regime governing the whole system is the First Amendment, that is Donald Trump is allowed and the criminal law, of course, the Donald Trump is allowed to run a political campaign. And he's facing trial for various things.

If he's convicted in that period of time, the only barrier to, to punishing him like anybody else is the question of whether the, you would be violating somebody's first amendment rights in doing so, maybe his by, if you're if you put a gag order on him or something maybe those of the voters who have a interest in hearing from a major party candidate. So, there's Trump's First Amendment rights at issue. There's the Republican party's First Amendment rights at issue. There are the voters First Amendment rights at issue. Beyond that, he is not differently situated, legally speaking, in the event of a conviction from you or me or any listener. Is that, is that a fair summary?

[9:43] Scott Anderson: I think that's right. I mean, these are really the countervailing legal and political interest values that might run counter to a conventional application of the rule of law and criminal justice, right? Like we know what criminal justice looks like for a normal person. What's special about this case? As this First Amendment value that you noted, that because it is not just for President Trump's First Amendment interest, it's all of ours as voters, potentially who might want to support him and particularly his supporters, it is a little separate from him as an individual. And I think it gets more severe as you get closer to election day at the point, you know, in November 2022, when former President Trump said, I'm the nominee or I'm a candidate for the nomination for president, that's actually a pretty low bar.

It doesn't mean that many people actually clearly have a vested interest in him being able to participate in the political process. It's a little different for former President Trump.

Benjamin Wittes: And you know it's a low bar because if it weren't, then everybody would simply declare themselves a candidate for president when they, when they faced indictment and they would suddenly become, you know, have, have to be treated specially.

Scott Anderson: Exactly. Exactly. And, and so, you know, for that exact reason, you're not going to see everybody who just says, oh, I'm a candidate for the presidency get a lot of special treatment from the courts. Maybe a little bit. Maybe if there's like, you know, a debate, they have to attend to participate in the process that might warrant special scheduling consideration, be more limited.

Former President Trump is a little different because he's always been a presumptive front runner. And I’m, I have no doubt that weighs in people's minds as they consider this as well as the fact that he has substantial support around the country from big parts of the country. But nonetheless, I, I think it's a little different from that point.

If and when he becomes the nominee this coming summer in 2024, then that really, or even the presumptive nominee kind of before then as he closes out primaries, if he does prove victorious and locks down the necessary votes to most likely become the nominee, even though it doesn't happen officially till July, that is the point where this will become more severe.

And certainly as the regular election gets underway, two major party candidates, I think that's when courts and other institutions are going to feel maximum pressure to respect those First Amendment interests, because it's clear at this point he's representing one of the two big political parties that a substantial portion of Americans vest their First Amendment political participation rights in.

Benjamin Wittes: Yeah, so I think there's one other significant countervailing factor that predates the election, which doesn't have a legal name, but I'm just, I'm just going to give it a description, which is the, it's fucking weird description, right? Like, and there's, you know, so like we've prosecuted candidates before Lyndon LaRouche famously, you know, was, was put in prison. And of course, Eugene Debs campaigned from federal prison in Georgia in, in the 1920 election. So like, but there's something really weird about somebody who is the presumptive candidate of a major party, much less the actually nominated candidate of a major party facing criminal process and the possibility of conviction.

That's a, that's an unprecedented thing. And it makes everybody uncomfortable in a, in a deep kind of way. And I think that just acts as a, it's not a First Amendment issue. It just makes everybody feel uncomfortable. And so everybody treads a little bit carefully. And you can see that in the Judge Chutkan dealing with these gag order issues. It's not just that there are First Amendment issues It's also that it's I think the technical term should be it's it's just fucking weird.

Okay, everything gets a little a lot more formally complicated on Guy Fawkes Day, November 5, Ben Wittes’ birthday, 2024, if Donald Trump is elected president. And I should add, if also, Donald Trump has a non-trivial claim to have been elected president, irrespective of whether he ultimately prevails. Remember that the election three years ago was not called by the news networks for a few days after election day. And so there can be even absent legal claims and whatever, there can be genuinely, genuine uncertainty for periods of time after a major election. At this point, there is a whole bunch of law that suddenly is conflicts with the interest of the criminal justice system.

And they are broadly speaking state processes for counting votes, for electing electors, for holding an electoral vote. Those are all state processes subject to, overseen by federal law and federal constitutional law. Then there is the Electoral Count Act provisions as were formed a year and a half ago that culminate ultimately in the new Congress coming in and of course, as we all know, in early January counting the electoral votes as submitted by the states. All of that stuff requires some degree of participation by the winning candidate, for example, that winning candidate might have to give a victory speech, might, at a formal level has to pick a cabinet, right?

All that coincides with the transition that coincides, and it would, it would be hard to imagine exactly how you would do that stuff, say if you had if you were required to be in court all day because you were facing criminal trial. Or if you were in pre trial detention because you had said something very inappropriate about the judge and the special prosecutor six weeks earlier or if you were serving a criminal sentence. So there's a whole bunch of stuff that the, including at a formal level, the entire electoral count process and at an informal level, the picking of a cabinet, the creation of the White House staff, the, all the things that we associate with the transition that go on this way that we've just simply never thought about how you would do if you, if there were criminal process pending.

Scott Anderson: Exactly. And we kind of see this overlapping of these kind of two buckets of potential interest here. One, the fidelity of that process of selecting a president that you get from election day through ideally, hopefully January 20, 2025. In theory, it could extend longer and pass that if there is you know, a failure to count electoral votes or some other issue that extends the resolution of the election passed that date. That's never happened yet, but it could, I guess, in theory. And then you have this idea of the, the general concern about the executive power and the president's authority, both as it relates to the states and it relates to the other branches of government separation of powers and federalism, as we tend to think about it in legal speech.

Those two overlap for this period between election day, inauguration day, because at that point, if there is that colorable, credible claim to the presidency, there's going to be reservations about impinging upon the person who's going to be the president and their ability to, like you said, pick a cabinet, do things like that. And then whenever the presidency finally gets resolved, that's the point where really those separation of powers and federalism concerns become the primary countervailing interest. At that point, you're talking about, like, well, what does it mean for a sitting president to actually have to deal with these issues?

That's the focus of our thinking today, this is all kind of preface for that to get to that point, but that's just to acknowledge there are these countervailing interests. We're already seeing courts think through and are going to have to think through these interests up to this point. But here we're really talking about that critical moment saying, well, there's a president in place now and it's not really clearly disputed. What does this mean if that person is under criminal investigation or has been convicted?

One other thing I'll note here, just before we move on between election day and inauguration day, practically, I kind of think a lot of courts and institutions are going to feel a lot of incentive to hold off on deciding anything for the simple reason that at that point, it's clear the executive branch may or is likely to change control. And usually there's an acknowledgement that an incoming presidential administration has a right to express different views on behalf of the executive branch. Precisely because these separation of powers and federalism concerns are so tied up with executive branch institutional equities, I think it's extremely unlikely any state or federal court is going to be eager to resolve an issue without hearing from the new administration or a potential new administration regarding their views.

And they're going to want those views to be informed by the bureaucracy. They're going to want it to come after January 20, hopefully when they are actually in office and have a chance to consult with professional staff and have the benefits of civil servants on the staff. And just because of a formality measure, that's when they're actually the president. That's when they can actually express formally the views of the executive branch on its behalf. So, you know, realistically, I think a lot of big legal questions will have the buck passed if they arise between November 5 and January 20.

Benjamin Wittes: Yeah. So one other additional thing, which is that related to one of the specific cases that Trump is facing, the Mar-a-Lago case raises some unique questions in this interstitial period, which is, you know, normally that one of the things that you do during a presidential transition is you share all kinds of classified information with the incoming president. That there's a, there's a process for, you know, from landing teams at different agencies to cleared staff to the president being briefed.

This would be the new incoming, the president-elect being briefed. This would be a very odd situation given that the incoming president has specific charges of willful mishandling of classified information. And the system would, it simply has no tools for thinking about how do you handle bringing a new president up to speed and the new president's staff when that president is facing charges for willfully mishandling material at the highest level of, of classification. So that's a, most of this is discussion is not really about the individual cases, but that's one that particularly in the context of a transition, I think we really do need to think about.

Okay. And yeah, and just one more as you work into the separation of powers and federalism area as your countervailing force, think about the different categories of cases, right. Sometimes the cases here are federal cases, they're prosecuted by the Justice Department. Then you get into this whole question of, and they're handled by the federal courts, so it's separation of powers, vis a vis the new president and the courts. And it's all kind of lateral administration of the executive branch issue with respect to the Justice Department and the office of special counsel. Sometimes, federalism issue as in a Georgia indictment being prosecuted by state prosecutors, or a New York indictment being prosecuted by New York prosecutors.

Okay, so this brings us to the four basic scenarios that we're thinking about here, and they break up along two different axes. One is, are we talking about federal charges versus state charges? And the second is, does the new President Trump, Trump II take office before the conviction, ie. during an ongoing trial or does he take office after conviction? Each of these breaks down into a number of different subcategories. We're keeping it with these four. So, post conviction can be he's already sentenced and he's in federal prison somewhere.

It could be post-conviction, he's on appeals bond and the whole thing is in front of the D.C. Circuit or the Supreme Court. Or it could be post-conviction, I mean, you can break it down a hundred ways post-conviction, but he hasn't been sentenced yet, right. Pre-conviction could be the trial is ongoing, the trial is scheduled, each of these is going to break down into a number of different sub components. But for simplicity's sake, I think you can think of it as a basic four square grid in which along one axis you have post, post-conviction and pre conviction or, or, or mid proceeding and the other axis you have federal versus state.

All right. So let's talk first about that first box which would be the president is under an indictment, at some phase of the indictment. He has not yet been convicted and the indictment is federal. Scott, we think this is the easiest case. Why, why do we think so? And are you going to offend our many anti-Trump listeners with your answer to this question?

Scott Anderson: Probably, probably yes. The latter question, for better, for worse.

The simple reality is that the president is the prosecutor in chief of the executive branch, controls the Justice Department, controls other relevant agencies that might be involved. At this point it's really just the Justice Department in prosecutorial or law enforcement decisions and that there is a long tradition of having substantial prosecutorial discretion vested in the executive branch.

So, it seems like this is a moment where the president's going to have the maximum opportunity to actually just direct the Justice Department or the bureaucracy that he is now in charge of, remember this, assuming this after January 20th, when he, the president is in office to say prosecutorial discretion, we're going to drop these charges. You know, Congress could have done something to prevent this. At one point they had an independent counsel-like statute that people dispute the constitutionality of, but was upheld by the Supreme Court. And maybe you could have an arrangement that could insulate a prosecutorial decision and take it out of the president's hands enough to prevent this authority. No laws like that are currently on the books.

The special counsel regulations do not do that, very much subordinate the decision still to the attorney general and in turn to the president. And you know, it's, Congress is not going to enact that before 2025. So, at that point, while that's a theoretical possibility, it's not likely to be an issue in this particular election, this particular case. And yes, that sort of self-dealing raises obvious concerns under Justice Department ethics and independence guidelines and policies, including a lot that have been installed by Attorney General Garland that are designed specifically to try and restore the independence of the Justice Department from political decision making like this.

But those are all still internal self-imposed restraints and guidelines. There could be political costs. I have no doubt, frankly, there will be political costs for taking this sort of action. It will be, cause a political uproar and probably should again, like it raises lots of very reasonable and right-minded ethical questions to be doing something like that. But I don't think that actually in the end is likely to stop the executive branch being able to do it. And it would be very, very unusual for a court to step in and say, no, you can't exercise prosecutorial discretion in this way, Justice Department. And it doesn't seem likely that the president would not ultimately be able to find someone in the Justice Department willing to implement this and can fire people or reassign people or reorganize the Justice Department as necessary to empower them to do that.

So in the end, I think this is the most likely case where federal charges that have been brought, but no conviction has been reached are most likely to just eventually go away or perhaps be negotiated down to something relatively minor and tolerable. If the political costs prove too high, you might see just a very generous settlement or plea or something to that effect, on terms that would allow the president to essentially avoid major consequences and continue to serve the functions of the office.

Benjamin Wittes: Right, so it's important to say that depending on how this were done, it wouldn't necessarily preclude the case ultimately resuming at some time. You could imagine the case dismissed without prejudice. You could also imagine the case simply being held in abeyance for four years. Depending on, you know, depending on the specific mechanism that they used you could imagine the case picking up again after the president left office. You could also imagine him being a particularly blunt instrument about it and you know just pardoning himself, which would of course raise the question of whether the self pardon is available, but if it is, would nuke the whole case forever.

And so the, the mechanism is very much in question, but I think the, the key thing here is that in matters that the president that are not subject to final decision, that the president has control over, the president, and you can say Trump or you can say democracy, because this is a situation in which the people will have voted to put him back in office, that is going to trump, no pun intended, any preexisting, preexisting criminal process that has not produced an outcome yet.

Alright, now let's go to the more difficult situation, which is that the president has comes into office having been convicted And let's just for fun Assume that he is in a federal prison somewhere that I actually think that would be very unlikely because even if you get a conviction at a trial in Washington in March, he'd probably still be free on some kind of appellate bond for reasons we've talked about earlier. People are going to be pretty reluctant to lock up a guy whose appeals are not exhausted while he's running for president.

But let's just say for to make the argument interesting that there's a very speedy appellate process. The D.C. Circuit considers this, you know, overnight. The Supreme Court denies cert. So you've got a final sentence and the Bureau of Prisons decides let's send him to the super max. And so he is somewhere in, you know, Butner, Colorado, and is then elected president and the Bureau of Prisons makes accommodations for him to meet with people to appoint a cabinet. And now it's January 20th and he is sworn in at the federal prison and is now both, you know, inmate number XYZ and president of the United States.

Seems to me we can assume that a few things will happen. One is that again, at some level, the answer here is going to be Trump wins, democracy wins. At a minimum, the Bureau of Prisons could say, as a matter of its own discretion we are going to suggest that you serve your sentence in the White House subject to your own personal recognizance and subject to your own travel whenever you want to on Air Force One, right? That, that, that could simply be done as a matter of Bureau of Prisons regulation, right?

Scott Anderson: I think that's right. I mean, you would essentially be in a position where the defendant, or not a defendant in this case, the, the person who's been convicted and the government would most likely be in alignment, because again, the government will be taking direction from person who's been convicted to say, we really think we need to have very generous terms for serving a sentence. We can adjust it substantially. I do think in many cases, not most cases, there would be an element of judicial review in these cases. You know, most of the terms of sentencing, the sentences are imposed by a court. They are not just a product of, a federal request or the request of the two parties and consent by the two parties. So I don't think you actually entirely get out of judicial review in this case, but at a minimum, most federal judges, I suspect are going to feel a lot of pressure to embrace sentencing adjustment that allow the president to fulfill their official duties pretty broadly construed. I mean, presidents work most of the time, right?

And when they're not working, they're also doing political campaign stuff, which is actually part of the presidency to some extent, particularly as you get closer to the next election, maybe some of those First Amendment concerns we talked about come into play a little bit more here as well.

And so, you know, you're going to see a lot of, I think, suspect at least you're gonna see a lot of inclination toward doing things like supervised release or home confinement, except perhaps for work trips and things like that, that will allow the president to serve out their sentence in a way that basically doesn't interfere with their ability to do that, to be president in any meaningful way. And given that the president spends most of the time in the White House or on Air Force One or doing a lot of work anyway, that would be you know, may not look that different from a regular president. It may mean less visits to you know, West Bedminster golf course or down to Mar-a-Lago as we saw during former President Trump's first stint in office, those actually may be harder to negotiate if you find a judge who's a real stickler for this sort of thing.

But I, I kind of suspect they're going to get a lot of leeway if not, but, but still not be able to just write a blank check for whatever the president wants.

Benjamin Wittes: Now, so why, like, so two other possibilities here. One is that the, the Justice Department, which does have a historic position that the sitting president cannot be prosecuted, is temporarily immune, presumably that position has a corollary, which has never needed to be articulated, but would, that the sitting president cannot be subject to continued criminal process, right?

So that he is, he may be convicted, but now he's been elected president, so he's immune, so he's not even subject to these conversations. The federal government can't lock up the president, therefore he walks out of, takes the oath of office, and walks out of Butner and gets into Air Force One and he's just the president until he leaves.

I could see that being a very logical extension of the existing Justice Department position, right? That you don't even reach these Bureau of Prisons accommodations because you just can't lock up the president.

Scott Anderson: That's entirely possible, and that's an argument the executive branch could make. That's a much more maximalist sort of limited option.

It's worth noting, though, like, unlike in the case where the executive branch is just bringing charges, here, they probably are going to have to argue that to a court and win and that is a higher barred pass. That's something that the, you know, judicial, pardon me, the executive branch policy of never, of not prosecuting a president never gets subjected to judicial review, right?

That's a statement of the executive branch's interpretation of the law as applied to its own exercise of its authority. Sentencing is a little different. So, you know, I, for that reason, you might see the executive branch take a position saying, well, let's do something that's more likely to win that gets us 98 percent of what we want. Let's just say we want calibrated exceptions that let the president still serve his function as president. Those are the ones that are most likely to get, I think they're most certain to get those honestly in the end, depending on how narrowly construed or tailored they are. Even if they're not that tailored, that's a much easier bite.

To say outright, oh, none of this matters. A, that's a harder argument to win with the court and b, it might actually not be in former President Trump's interest. If he can say, no, my conditions of confinement are very broad, but I'm still serving my sentence, then he gets to leave his time in the White House, having served a sentence.

If they say, no, the president's not subject to sort of confinement, then maybe that, that's doesn't count towards his sentence. It's not, I don't know, and it's actually a good research question to say, how would that be told? How would we think about that? Is there any precedent for that? But there's a big possibility that when the president is no longer president, then that sentence comes back to haunt him. So he might have good reasons to say, oh no, I'll serve my sentence, but I'm going to do it under the most generous terms I can get, and those are probably pretty generous.

Benjamin Wittes: All right. So two other possibilities here. One is that just like in the prior case, the Justice Department essentially moves to void the conviction. And, you know, you'd go in front of a federal court and the Justice Department, new Attorney General Clark would go in front of the, district court and move to vacate the conviction of Donald Trump on grounds that the interests of justice and democracy so require. And of course the defense would have no objection. It would, it would join the motion and you know, just make the thing go away. And then of course there's the version of that, that you do yourself, which is the self pardon. The self pardon analysis is presumably the same as in pre indictment. You either have that power or not. What do you think of the possibility of the Justice Department just trying to nuke the conviction in collusion with the defense?

Scott Anderson: So I am a lot more dubious about the likelihood of that strategy succeeding, although it's certainly an argument that they could make. It's kind of the most extreme argument, even more so than the president can't serve a criminal sentence. It's that the president could just get rid of this without having to pardon himself.

You know, I am not an expert in this area. And again, I think this is, this is a preliminary conversation and discussion based upon our thinking through some of this in live, in live time, in real time. So, folks want to dig into this deeper, I think it's a great research question to think about how this works in more detail. I think this is a pretty esoteric area of criminal law and procedure I'm not deeply vested in, but based on my preliminary research digging into this, things I've, I've noted that I think are relevant here is that expungement of criminal conviction is like a pretty extraordinary remedy in most contexts.

There are certain cases where Congress has expressly provided for it in statute, and that's where you see it happen. It's not something you happen, see happen a lot of other places. And then more fundamentally if that's something the president could just do to go into court and say, hey, the Justice Department, I'm directing the Justice Department to ask you, court, to drop these charges and the court actually felt obligated to follow that, I think we'd see that tool deployed a lot more often. Think of all of the last minute pardons presidents issue, right?

Like when you have the president's last days in office, pardons a bunch of people, yeah. Yeah, the pardon is useful because you can, you know, vacate a lot of these charges and things, but it has the downside of being very politically tied to the president, it’s very personally done by him. Why wouldn't, if he had the option, just direct the Justice Department to drop a bunch of these convictions instead, he wouldn't have to get his hands dirty by doing it. And I think you would still frankly have double jeopardy concerns that those people could not be convicted for those crimes that were tried for those crimes again, in certainly in federal court, at least I think, most really in any, any sort of jurisdiction. So, you know, if you are, in that sort of position, I think if that were a like, like a live theory that had a lot of credibility behind it, we would have seen maybe presidents use it before.

Instead, we've seen a lot of pushback against that. It doesn't mean the president couldn't try, but I suspect the executive branch and prior presidents have always said, well, it's something courts might not buy. And that's probably the same advice that former President Trump will get if he's back in the White House and that might urge them to say, well, let's go for a legal theory or strategy here that we think is more likely to succeed, that gets us almost everything we want as opposed to, you know, rolling big on this one. But we don't know. I mean, certainly Trump has rolled big before and he might do it again here.

Benjamin Wittes: So this is an area where I think we have a minor difference, which is that you're inclined to see it done through terms of service of sentence whereas I'm inclined to think that they would go big and either seek to void the conviction or self-pardon out of the conviction or just assert presidential immunity for, you know, I, I am the million pound gorilla, gorilla and no chains can bind me. I, I break them with my mind. All right, so now, but in any event, I think we do agree, right, that this case is dramatically more complicated than the one, the federal case in which it's still pending.

Scott Anderson: Absolutely.

Benjamin Wittes: All right. So let's get more complicated still. Now let's move to Georgia state law and let's use the Georgia case rather than the New York case cause it's frankly richer and a bit more I think it's, it's a more serious case, so, it has more time associated with it. It has, it's a bigger deal case.

So here, I think you have a lot of the same issues that you have in the fed-. And let's talk about the one where it is pretrial, right? So here, I think the president has an advantage and a disadvantage. There's the advantage that this is, you have the federal supremacy clause in the Constitution, which presumably a state is not allowed to encumber the office of the presidency. And so, a mere trial in Georgia cannot stop the president from doing his job. On the other hand, there is no mechanism to, for the president to direct a county prosecutor in Fulton County, Georgia to drop a case the way he can with the attorney general, and you can't pardon, self pardon, or anything else your way out of a state charge. So it seems like there's the clarity of the point that the federal, that the state government can't tie up and lock up the federal presidency is clearer than at the federal separation of powers level, but the ultimate ability to get rid of the case is much weaker.

Scott Anderson: Yeah, I think that's basically right. Although this is really uncertain territory again, I mean, there is a federal supremacy principle here in play, right? Like everybody recognizes that federal law is supposed to trump state law for those issues that are within kind of the federal responsibility. And this arguably is one to say, like the, the, the presidency is certainly, and maintaining the ability to exercise the presidency is certainly a federal responsibility.

But again, we have federal immunity defenses that already are supposed to be doing this, that are being argued as we speak. So, it's not 100 percent clear to me that that would necessarily require a voiding of the prosecution if those immunity defenses don't already do that. Instead, the question is, well, again, what are the terms in which the trial is executed? Can we accommodate the president to do it? That may go so far as to say, we're going to hold, we're going to obligate the state to hold that prosecution while the president is in office. I don't think that's impossible. Although again, like that is a pretty extreme remedy. I mean, I could see a court saying, well, I don't know if we have to go quite that far. And again, I think this is a thing that you have a state that's really stuck, sticking to its guns is going to see judicial review and we'll have to get resolved probably by the Supreme Court, ultimately. It's worth noting, though, that state officials are probably going to feel a lot of pressure to drop criminal charges or accept a favorably agreement or otherwise wind down the prosecution.

This is going to be one of those places where an election has been had, people are going to feel like the people's voice has been heard. That doesn't mean they're going to give up on the chances entirely of holding somebody accountable. There's gonna be a lot of prevailing pressure, especially probably in Georgia, where you have statewide officials who, you know, are allies of former President Trump to some degree, lesser degree than some places, not at the Fulton County level, but nonetheless there's plenty of people there who will be saying, hey, look, isn't this better for everyone if we find a way to end this on fairly amenable terms and not interfere with the democratically determined outcome. And that'll be a political pressure that a lot of prosecutors are going to feel. It's also, we have to think about, and this is something that we again have to look more into in state law that I don't know the answer to off the top of my head, but to which extent prosecutors could dismiss charges without prejudice or hold off on conviction, maybe even toll a statute of limitations in a way that might allow them to revisit that later.

I could see that as a solution courts might settle on if it's available under state law to say, oh, well, that's acceptable. When former President Trump is no longer in the White House, this conviction can come back and prosecutors can pursue it.

Benjamin Wittes: Yeah. I'm not sure why the, why the answer to this problem wouldn't simply be a joint motion by the prosecution and defense to stay the proceedings. And, you know, he's released on his personal recognizance anyway. He doesn't have conditions of pretrial release that preclude serving as president. And so why if you simply stayed the proceedings, you would, that would effectively toll the statutes of limitations because they've been you know, you have no speedy trial clock and if the defense asks for the delay and so you just stop and pick it up four years later. I'm not sure why that isn't a relatively complete answer to this situation.

Scott Anderson: It very well might be. I think it all boils down to how far the state authorities want to push it or whoever the prosecutor is in this case, not necessarily statewide. Obviously Fulton County is a local municipality prosecutor. So, like, the question is how far they want to push it and how far, therefore, the courts have to step in to resolve it. But I agree that that strikes me, given the political equities, a likely voluntary resolution that you might be able to get all parties on board with. And if you do, I doubt a court's gonna stand in the way because again, this is all under prosecutorial discretion. Courts don't really have a role in this at this point. This is just the discretion, is not in the control of the president at this point. It's in the control of those state and local officials.

Benjamin Wittes: All right, so this brings us to what I think is the most complicated situation, which is where you have the state prosecutor and the conviction. So, the president can't direct the accommodation he needs from the prosecutors cause they're state prosecutors or, or local prosecutors. And you have a let's assume he's already been sentenced and he's serving, you know, in some renowned Georgia penal institution. And January 20 comes around.

Again, I, so I think this one just has no, I think you can say based on supremacy clause that the state of Georgia is not allowed to detain, physically detain the president of the United States. But you also can't pardon your way out of it. There's no, my knowledge of Georgia commutation and pardon law is not great, but my recollection is the governor does not have the exclusive pardon or commutation power and to make matters more complicated, the sentence will have been, you know, issued.

And so all I know how to say about this is that you would have to physically release Trump and let him leave the state. But I don't think that answers the question at all of what happens to the conviction. Do you do it on a kind of temporary parole, you know, we release you to, to perform your duties as presidency, but be sure to come back when you're done. What, what, what do you think?

What's the, like, I cannot think of the slightest analog for this situation in any other, except one, and it also involves the state of Georgia. And it's a lovely, lovely story. It's one of the few lovely stories about President Warren Harding, who after his election, he was in the White House for a while, you know, racking up all his Teapot Dome-y kind of scandals which nobody knew about, he was a very beloved figure. And he thought his prior, his predecessor, Woodrow Wilson who was of course, a Democrat and a progressive, which Harding was not, had been awful during the war to leftist protesters, war protesters and resistors. And so, he summoned from Georgia, from prison in Georgia, the, the, Eugene Debs, who had been the Socialist Party's nominee for president. He arranged for him to get a parole for a week. And Debs took the train up to Washington and met with Harding in the White House. And Harding, they apparently got along very, very well, thought highly of each other, despite one being a socialist and the other being the ultimate Gilded Age, you know, big, big capital guy. And they met and neither of them ever disclosed what they talked about. And Debs took the train back to prison in Georgia. And a few months later, Harding parol, commuted his sentence. And did it in the name of national unity. And it was one of, one of the, one of the genuinely statesman like things that Warren Harding did as president.

And it involves a prisoner in Georgia and the, you know, and a commutation in order, you know, to deal with issues related to the presidency. And Debs never criticized Harding personally. He always thought highly of him. So that's the closest I can get to an analog to this.

Scott Anderson: I mean, it's an interesting one, but I, but I don't think it's, it doesn't help us too much on the issues here.

Benjamin Wittes: Correct, cause he was a federal prisoner. It just happened to be in Georgia.

Scott Anderson: Exactly.

Benjamin Wittes: A good story, though.

Scott Anderson: And not the president. It's a great story. And like may, perhaps an inspiration for ways people might resolve these sorts of constitutional conflicts in the future. Although I kind of doubt it and not, and nor am I even a hundred percent sure in this case that's how, how it should be resolved.

The simple reality is, you know, this is, this is the untested case again, comes down to how far state authorities and other relevant state officials or local officials will wanna push their prerogative on this, and how far the courts will push back, federal courts, on the supremacy question. You know, I have no doubt federal courts are going to say, if somebody's elected president, they got to be able to do the basic duties of president.

There are examples, dating back to the founding, of federal officials serving prison sentences while in office. Matthew Lyon around the turn of the last century was, or two centuries ago, was prosecuted and actually reelected while serving his prison sentence under the Alien and Sedition Act and served out his sentence or a substantial part of it, at least in prison, even while he was supposed to be doing his duties of office.

The difference there, though, so, so I should say that's, that's a sign of saying just holding federal office, that hasn't generally been construed of saying, oh, you, you can't be in state prison now, that gets you out of it alone because you're too important. But being a member of Congress is different from being president because being president, so much of the branches, the whole branch of government's duties, is vested in you as a person. It's very individualized. You can have one member of Congress in prison, that doesn't disable the institution. Arguably that's not the case with the president. So there's going to be, I have no doubt that any court, state court trying to say, oh no, the president can't do his duties. He has to sit in a prison cell is going to lose.

The question then becomes, well, how much of a compromise can they push for? If you start talking about, again, conditions of release when the president is not doing presidential duties, things like that, perhaps they have places they can push back. But again, those state officials are going to feel a real political pressure to say, all right, we got to find ways to accommodate the president, accommodate the democratic results of the election.

The real question here is to say, okay, like, again, what are the remedies available under state law to say, oh, well, we've decided we're going to hold off on him serving the sentence. Can we toll the sentence? How do we toll the sentence to say, can he come back after he's out of the White House to serve the sentence? Can we preserve that right? And that involves a lot of complicated question of state law. There may be law, there may not be. I suspect it's nothing squarely on all fours because it's such a unique situation. And again, it's an area for kind of further inquiry.

But those sorts of compromises are going to be really around this idea, I suspect, of to what extent can the president be accountable after they leave the White House. While the president's in the White House, I'm pretty sure that at least for those areas where the president needs to be free to do his duties, and that's a lot of his time when he's in the presidency, you're not going to get a state to actually, you know, hold him in a prison cell for God's sake.

Now, financial penalty, that's another deal. Like maybe the, I have no doubt, frankly, probably it can still be, imposed financial penalties on the president. It doesn't seem to interfere with his presidential duties at all, but the prison side or other sort of restrictions on his activities, if they conflict with presidential duties in any sort of colorable, plausible way, I think that's probably a losing argument for the state. But not one hundred percent clear.

Benjamin Wittes: It would be a really useful question for somebody to research over the next, say, nine to 11 to 12 months what the law on furloughs from Georgia prison look like, you know, and who in Georgia is allowed to say, yeah, you're still a prisoner in, you know, whatever state penitentiary, but we're going to let you go home to, cause your parent is dying, for a week to attend a funeral, right or to see. I mean, many states have furlough laws, furlough rules. It would be interesting to know who in Georgia, if anybody is allowed to say, yeah, you're still a prisoner here, but you know, you can, you can go have a, have a little vacation to be the president. We know the answer to that at the federal level. I, I do not know the answer to that about Georgia.

All right. So. Scott, what are your big takeaways here? What, what do you, I've got a few, but let's start with you. What do you think the big, the big message that people should come away here with is?

Scott Anderson: Yeah, I mean, my big takeaways are, and some of these, again, are, respect, my kind of take on this that you may or may not agree with, is, is first, there's a really good reason to try and wrap up these convictions substantially, or these investigations, prosecution of convictions substantially before election day, because the questions just get a lot more complicated certainly as you get closer to election day, but particularly after January 20th and, and early after election day.

So, it gets a lot cleaner the more you can resolve on the front end of things to the extent possible. So, you know, to the extent there's an institutional interest in resolving these things cleanly, avoiding pushing it off past election day, which is something former President Trump has pushed for on numerous occasions, I suspect makes it a lot easier.

Second, you know, in all of these cases, it seems like election as president is almost certainly going to mean the president can still serve as president, even if he is under criminal indictment or criminal conviction at the federal or state level. I think it's extremely unlikely that anything that we see is going to change that. If he's reelected, former president Trump will be president, even if he is under criminal conviction or indictment somewhere.

Now that doesn't mean he won't be held accountable. Again, there are certain parts of penalties that might still be imposed. Again, financial penalties could still be imposed. There's also a possibility he may still face prosecution or a sentence after he leaves the White House, or there may be certain, certain restrictions on his conduct within the White House, particularly where not related to his presidential duties. I think these are all in the realm of possibilities. But anything that is going to interfere substantially or meaningfully or even colorably with his ability to serve as president and execute its official duties, I think is very unlikely to stand while he is the elected president.

Same with state authorities, I think there's a likelihood that they are probably in a better position to continue doing what they want to do, if they really want to push for accountability of some sort, as long as they make those accommodations to the presidency. Again, I think federal or state, it doesn't really matter, you're not going to get away with restricting the president's ability to actually act as president. But the state will be in a position to push for a lot of other accountabilities and depending on what state law allows, might be able to potentially hold out for, even more without the sort of interference you see at the federal level, by virtue of the fact that president being in control of federal law enforcement, not an issue at the state. And that means the state may be able to reserve a lot more options for holding former president Trump or someone in a similar position accountable until after they leave the White House or finding alternative means to do it and push for them.

But across the board you see both legal pressures as well as related political pressures and kind of institutional interests are going to push in the same direction. And that is going to be allowing the president, who's elected as president for whom cannot be disqualified from the presidency for the simple reason that they have been convicted or indicted of a crime state or federal. That seems pretty well established, not a hundred percent ruled on by the Supreme Court. It's pretty well established and that principle is in place. States are going to, and courts and other officials are going to recognize it, and they're going to say whatever else may happen to President Trump as a person, if he's reelected, he needs to be able to execute the duties of the office. And I don't think any amount of state or federal criminal conviction or indictment is going to make a difference or impact that.

Benjamin Wittes: Yeah, I completely agree with that. I think for me, the key takeaway of this exercise, which, you know, is don't think the criminal process is going to save you from a criminal president. At the end of the day, the system will, as I think it should, by the way, I'm not criticizing it for this. We live in a democracy in which the will of the electorate is the ultimate rule, particularly on things that are so singular as to the presidency is one person, you know, and, you know, if, if the people knowing that Donald Trump is indicted on 91 counts of blah, blah, blah, vote for him anyway. It's actually a bit of a tough sell to me to say that they shouldn't be able to get him. My argument, as yours is, that they're going to, the system will accommodate that and all these other things will go away.

My second big takeaway though is countervails that a bit, which is that, you know, the Republican electorate, as a matter of its choice of nominee, and the general election electorate, as a matter of its choice of who wins, really should think about how important it is to avoid some of these issues, and these are, you know, we've done this in a fairly antiseptic fashion of, you know discussing different scenarios and nice grids and overlapping timelines and stuff.

But, you know, this stuff plays out in very brutal and fraught battles between different actors in government. And as we saw on January 6 that stuff can get very, very ugly, very quickly. And I don't want to underestimate how, you know, each of these questions would be enormously high stakes. And I do think that is a very good argument for say, not electing a criminal president, or in the case of Republican primary voters, not nominating one, somebody who is known to be under, 90 some odd counts of criminal misconduct at the state and federal level.

Remember, none of these scenarios are mutually exclusive. You could have, you literally could have all three of them, all four of them going at the same time, right? One state conviction, one state, some state charges pending, one federal conviction, some federal charges still pending. You could have literally all four of these scenarios play out at once. And that would be, you know, I don't like to throw around terms like constitutional crisis, but that would be an enormous constitutional stressor at the beginning of an administration. And so, you know, I guess my key takeaway is, are you sure you want to do that? But, you know, we are a 501c3 organization that does not oppose or support any given candidates.

And so that applies to all candidates who are, you know, have, you know, 90 plus criminal charges against them. It just seems like a, a, a, a very fraught idea. Scott, I'm going to give you the last word before we wrap this up.

Scott Anderson: The only thing I will close on is just to reiterate for folks watching or listening, this is very preliminary, you know, this is really, really virgin territory. We don't really have a lot of data points to move on in this. This involves a lot of fairly esoteric areas of state and federal criminal law procedure that Ben and I have poked at and looked into, but are not deep experts in. So, I would encourage anyone who is looking into this or thinking about a part of this, particularly those issues we flagged as needing some more research, send us an email, send us a tweet or an X or whatever, calling them on X now.

Benjamin Wittes: Not me. Don't send me an X. I've been banned from Twitter.

Scott Anderson: Ben is still banned. You can X me, please X me on this issue. We'd love to talk about it further and continue this line of inquiry. Cause these are could be very real questions a little over a year from now that we're all gonna be wrestling with, and it'd be good to think them through a little bit in advance, and hopefully this is at least a first step in that direction, if perhaps an imperfect one, as other folks may point out.

Benjamin Wittes: We are going to leave it there. Scott R. Anderson, you were a great American, and this was a super fun project to, to do with you. We will eventually write it all up for Lawfare, but we thought we would as an original matter, just have the conversation again.

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