Q&A of the Day – What Would Happen if Donald Trump Were Convicted but Elected?
Each day I feature a listener question sent by one of these methods.
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Today’s Entry: @brianmuddradio What would happen if Trump was convicted and sentenced but won the election? Could he pardon himself?
Bottom Line: This isn’t the first time the topic of whether a president could pardon himself has come up. This isn’t even the first time the topic has come up with Donald Trump specifically. As Trump tweeted on June 4th, of 2018 during the Trump-Russia collusion investigation: As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? This is though, an entirely new set of circumstances compared to where the conversations were centered while Donald Trump was still president. And the answers to the questions perhaps aren’t as obvious as they may seem to some. That’s because in the context of a potential presidential pardon – the federal charges for which he was just arraigned wouldn’t be his biggest concern. But let’s start with the presidential pardon piece as that needs to be answered in order to address your first question about what would happen.
President Trump was right when he said he could pardon himself. The expressed Constitutional authority to pardon is as follows...the president has the authority: to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment. This is not only expressly clear in the United States Constitution it’s been Constitutionally tested and upheld. President Andrew Johnson pardoned a Confederate actor upon becoming president after the assassination of Abraham Lincoln. A legal battle ensued challenging the validity of the pardon due to the Confederacy having been at war with the Union. The pardon was upheld – because as stated the offense was against the United States. The President has absolute and unlimited authority to pardon anyone who has committed a federal offense. In fact, the pardon power is the single farthest-reaching power constitutionally. It’s the only power granted to the executive which isn’t subject to checks by the other branches of government.
The unlimited authority of federal pardon powers over criminal matters works hand in glove with the very reason the founders placed only three limitations on who may become president. Those three requirements are:
- Must be a natural-born citizen of the United States
- Must be at least 35 years old
- Must have been a resident of the United States for 14 years
The founders recognized that the day may come when a person or political party may literally imprison their political enemies. That’s why a convicted felon may become president. That’s why a convicted felon may literally run for president while imprisoned. It’s also why the federal pardon powers of a president are unchecked. The founders trusted the American people to make these types of decisions about whom their leaders should be over intrenched politicos and their interests. And so, this takes us back to the question about what would happen if Trump were convicted and sentenced and won the election. He would be sworn in as President of the United States and would no doubt pardon himself of the federal crimes he’d been convicted of and that would be the end of the criminal process. However, you may recall the one exception to pardon powers of a president is impeachment. Thus, congress may seek to impeach for the criminal offenses he would have pardoned himself for. It’s unlikely that if Trump were to win the presidency, that Democrats would have the numbers necessary to impeach and convict/thus removing his as president – but that would remain a possibility – especially after what a potential midterm election cycle could bring for what would be the second half of the final term for Trump. But you might have noticed what isn’t covered under the pardon powers of a president. State offenses.
Ironically, in the context of running for and winning the presidency, the biggest potential threat to Donald Trump aren't the federal charges he was arraigned on yesterday. It’s what he’s already been indicted for in New York and potentially what he may be indicted for in Georgia (related to the investigation into alleged election interference during the 2020 election). If convicted and imprisoned for state offenses there’s nothing which a president’s pardon powers could do to impact the offenses or the sentences. Under that scenario it would be possible for Trump to be sworn in as president- yet remain a prisoner of a state. The only people who’d retain the ability to pardon those crimes and related sentences would be at the state level. One might imagine that if Trump were elected president Georgia’s Board of Pardons and Paroles may pardon the president. But would New York Democrat Kathy Hochul? The irony of ironies is that the pending trial with the worst implications for Trump, if he were to be elected president, would likely be the hush money payment trial if convicted in New York.