Donald Trump is facing 91 criminal charges after being indicted four times. Regardless of what his supporters think about those charges, the wheels of justice are turning, and Donald Trump will likely be convicted on several felony charges.
When those convictions come will be critical to the question of whether Trump will take the oath of office from prison and whether he will govern from behind bars.
Since it is a generally accepted legal opinion that a president cannot be prosecuted while in office (although there would likely be challenges to that tradition), if Trump is sworn in without being convicted, it's difficult to see how he could be denied office. All prosecutions would be on hold as long as Trump served as president.
But what if Trump is convicted of felonies before Election Day? Or Inauguration Day? There are no constitutional guardrails to guide the country through such an unprecedented scenario.
Trump would be free to appeal any conviction, of course. But there's nothing in the law to prevent vindictive, Trump-hating judges from putting him behind bars while the appeals move forward.
Reason's Keith Whittington has developed some scenarios of what might happen if Trump is in prison and wins the election.
If Trump is cooling his heels in the big house when Inauguration Day arrives, he could simply be sworn in as president in his prison cell. The presidential oath can be taken wherever the presidential designate happens to be at the time of his ascension to the office. Nothing says the president cannot be a convict, though the Department of Justice has insisted (when this was a live question under Nixon and Clinton) that a sitting president cannot be prosecuted. Joe Biden will stay out of prison—at least until he moves out of the White House.
Trump could be pardoned by Biden before he takes office. Admittedly, that's a far-fetched scenario, but Biden may be old-fashioned enough to put the country ahead of his own bitter feelings after a loss.
There's also the possibility that Trump could take the oath of office and then pardon himself. The president's power to pardon is nearly unlimited, and there would be nothing to stop Trump from making the left's heads go into orbit by issuing himself a pardon.
The director of the Federal Bureau of Prisons could presumably be persuaded to take the president's word for the validity of his self-pardon and see to his release. He would likely need a pliant attorney general and Office of Legal Counsel in place to provide legal cover, which would necessitate waiting until such officers could be appointed.
The validity of a self-pardon would undoubtedly be litigated. Trump would no doubt be able to wait out the litigation from the White House rather than from a prison cell. But with such a novel and difficult constitutional question, it is far from certain how the courts would resolve such a case. Ultimately, the question would have to be resolved by the Supreme Court.
Other, even more unlikely scenarios include a "legal" prison break involving Trump-appointed cabinet officers colluding with the imprisoned president to spring him or Trump governing the nation from behind bars.
Hopefully, we won't have to face any of those scenarios because Trump's trials will still be in progress on Election Day.
Related: Vindman Says Trump Has 'Every Intention' to Destroy Democracy if He's Elected
But despite all this attention on Trump's plight, what would happen if Biden died before Election Day — and won?
Talk about a constitutional Magilla!
If a presidential candidate were to die shortly before the general election on November 5, 2024, his name would remain on the ballot and voters pulling that lever would in reality be choosing a slate of that candidate's presidential electors. If something were to happen to a candidate after the nominating convention but before ballots are printed and early voting begins? Well, then things get complicated, depending on each political party's own rules.
Thanks to the Supreme Court's decision to take up Trump's long-shot immunity case, thus delaying the trials possibly beyond Election Day, it's unlikely that any of these speculative scenarios will be realized.
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