“Sitting Presidents Cannot Be Indicted”: Trump May Be Able To Pardon Himself if Elected Next Year, Legal Expert Suggests

William FurneyNov 28, 2023

Minute Read

If Donald Trump is elected president again, in next year’s election, will he pardon himself of the four indictments and 91 criminal charges he’s battling? Some legal analysts think so.

‘Unconstitutional’ Proceedings

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They note that criminal proceedings against a sitting president are not permitted under the US Constitution, at least according to the Department of Justice.

DOJ Decades-Old Policy

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Cornell University’s Legal Information Institute says: “The Department of Justice has a continuing policy since the 1970s that sitting presidents cannot be indicted as it would unconstitutionally prevent them from performing their duties as the head of the executive branch.”

Civil Proceedings Out Too

Legal experts say there is legal precedent to argue that civil proceedings could be dismissed if they interfere with a president’s work. It’s based on a case Paula Jones, an Arkansas state worker, took against then-president Bill Clinton, over allegations of sexual harassment.

No Exact Immunity

And while there isn’t exactly immunity from prosecution for sitting presidents, says New York lawyer Paul Golden, they can make a case for how it might affect their work and cases would be dismissed as a result.

‘Discharge of Duties’

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Golden told Newsweek magazine: “At that point, the Constitution permits a judge to schedule a trial in an ordinary civil damages action … only within the constraints of a constitutional principle — a principle that forbids a federal judge in such a case to interfere with the President’s discharge of his public duties.”

‘Lots of Options’

He added: “One of many strategies a sitting president could use, therefore, would be to file a motion in the context of the state case, arguing that allowing a criminal case to continue would affect the president’s ability to run the country. But there are a host of other potential strategies available as well.”

Trump’s Legal Battles

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Trump, 77, is fighting an array of charges that could derail his attempts to get back to the White House. He has been indicted at federal and state level, in Georgia, for attempting to overturn the result of the 2020 election he lost to Joe Biden and prevent the peaceful transfer of power. Two other indictments allege he mishandled classified documents and paid hush money to cover up an alleged affair.

‘Not Guilty’ Pleas

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Trump denies the many charges against him and says they amount to a “political witch hunt” by Democratic operatives trying to thwart his presidential ambitions. He has pleaded not guilty in arraignments.

Attempts to Move Trial Dates

In a possible sign that Trump may be planning to have the cases thrown out if he becomes the next president, legal analysts say, his lawyers have been trying to move the trial dates beyond the November 5 election date next year. They are fearful of negative media coverage during the trials and possible convictions that could affect Trump’s chances of being elected, say legal observers.

Court Refusals to Move

But judges in the indictment cases have ruled that the trials will go ahead as planned, with some starting as early as March next year, shortly after primary voting wraps up.

Trump the Leading GOP Candidate

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Trump is the frontrunner in the Republican race to be nominated as the party’s candidate for the 2024 election, with an approximate 50-point lead over the GOP pack. Rivals including Florida Governor Ron DeSantis, former South Carolina governor Nikki Haley and entrepreneur Vivek Ramaswamy are all trailing in single digits or low teens in national polling, suggesting that Trump will almost certainly be chosen as the GOP candidate for 2024.

Verdicts During 2024 Campaign

Some of the trials may have wrapped and delivered a verdict by time the 2024 election date comes around, while others may still be ongoing, notes lawyer Golden. Should a criminal trial be in process as Trump was elected president, the outcome would be uncertain, he says.

A Gray Area

Golden said: “It is unclear how the criminal trial would be handled if, in the middle of the trial, Mr Trump were re-elected president. Although the Department of Justice has concluded that criminal prosecution of a sitting president would be unconstitutional, its memos on the topic do not have the force of law until and unless a court adopts them. Even then, one court might not be bound by another court.”

New York Civil Case

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Trump is currently on trial in New York City, with his adult sons, for fraud relating to his Trump Organization. The judge has already ruled that fraud was committed and prosecutors are seeking a fine of at least $250 million in a case that threatens Trump’s real estate business as the court has canceled some of its business licenses as a punishment.