Sentencing Trump

On election day and several times since, I have been asked by reporters what will happen to the criminal cases against Donald Trump now that he is president-elect. According to news reports, Jack Smith is planning to wind down his prosecutions before Trump takes office, perhaps to issue a report that Attorney General Garland could then make public. Should Smith decide otherwise, and persist in the prosecution, Trump would surely end his commission, although it would likely take a little longer than the "two seconds" Trump has promised. But just a little.

The DOJ regulation that authorizes the appointment of a Special Counsel also states that the Attorney General, not the President, "may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies." So Trump can't fire Smith, but anyone Trump appoints as Attorney General can and indeed would be justified in doing so. Why? Because if Smith continues the prosecution of Trump once Trump is again president, that would violate the DOJ policy--first adopted in 1973 and reaffirmed in 2000--that forbids indictment or prosecution of a sitting president on the ground that such an indictment or prosecution "would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions."

Meanwhile, there's also the possibility that Trump would try to pardon himself. To be sure, there is doubt about whether a president can issue a valid self-pardon, but even if not, Trump can secure a pardon: he could temporarily relinquish power to designate J.D. Vance as acting president pursuant to the 25th Amendment. After all, Trump is old and eats a lot of meat. Maybe he needs a colonoscopy. In any event, he could schedule one, and while he's sedated, Vance could pardon him. The advantage of a pardon over simply dismissing Smith is that the pardon route makes the federal cases go away forever, not simply while Trump is president.

Thus, one way or another, the answer to the question of what happens to the federal prosecutions is that they go away. What about the state cases?

I'll focus on the New York case in which Trump has already been convicted and faces imminent sentencing. Trump can't fire the prosecutor or secure a federal pardon for a state offense. He does have an appeal pending, but in the meantime, Judge Merchan could decide to sentence Trump and let him then appeal. What are his sentencing options?

Putting aside the merits of Trump's appeal, in my view there is no obstacle to Judge Merchan sentencing Trump to pay a fine. A former president--indeed, even a current president--can pay a fine without any interference in his official duties.

However, much as I wish the answer were different, a prison sentence or substantial limits on Trump's freedom that overlaps with Trump's presidency would be highly problematic. Let me explain why.

Although that Department of Justice policy forbidding indictment or prosecution of a sitting president doesn't by its terms apply to state prosecutors or judges, if its analysis is correct, the Constitution makes it applicable. And there is reason to think that the DOJ analysis is at least partly correct. In my view, the DOJ memoranda too readily reject the possibility that a sitting president could be indicted but not prosecuted while in office. The core problem with prosecuting a sitting president is that doing so interferes with his ability to do his job (because, among other things, he has to go to court to defend himself). An indictment without an active prosecution does not present that problem.

Yet surely DOJ is correct that active prosecution does interfere with the president's ability to conduct the business of the executive branch. Well, it's harder to imagine a greater interference with the president's ability to conduct the nation's business that holding him in prison. To choose just one of many examples, imprisonment interferes with the president's obligation, pursuant to Article II, Section 3, to "receive ambassadors."

I suppose that some minimal probation conditions would not interfere with the president's ability to perform his assigned role. For example, if Trump were given a suspended sentence of a year during which he was obligated to check in with a probation officer once each month--perhaps in the White House itself--presumably he could do that without much difficulty. That kind of burden seems lighter than the burden of responding to a civil lawsuit for private pre-presidential conduct, which the court allowed to go forward against a sitting president in Clinton v. Jones. More restrictive probation conditions--such as a prohibition on foreign travel--would be unconstitutional under this analysis.

When I reported a version of the foregoing views to a colleague, she expressed incredulity. Suppose, she said, that before his inauguration, Trump, as a private citizen, shoots and kills someone in broad daylight on Fifth Avenue. Would I still say that New York State is disempowered from enforcing its criminal law against him while he's president?

I'm pretty sure my answer is yes. Suppose that instead of committing his murder on Fifth Avenue in NYC and thus ending up in NYS court, Trump, still as a private citizen, commits a murder on the National Mall. If he were to remain a private citizen, he would be prosecuted in federal court for murder on a federal enclave. But under DOJ policy, he can't be indicted or prosecuted while he's president and, I've suggested above, it follows even more strongly that a sitting president can't be imprisoned.

Thus, my answer to my colleague's question is that if the DOJ interpretation of the Constitution is correct, then it's already taken for granted that a sitting president can't be imprisoned for federal murder; it's a tiny step to say a sitting president also can't be imprisoned for state murder.

What if someone who is already in prison runs for and wins the presidency? Eugene Debs ran from prison in 1920 and received a million votes. According to my analysis, if Debs had won, he would have had to have been released from prison to serve his presidential term.

There is one other alternative, but it's messy. Maybe someone who is already in prison before his presidency starts "is unable to discharge the powers and duties of his office" within the meaning of the 25th Amendment. If so, then Judge Merchan could sentence Trump to prison and Vance would become president for the duration of the overlap between the sentence and the presidential term. (Note that this option would not have been available for Debs, because the 25th Amendment wasn't ratified until 1967.) But the 25th Amendment gives the president an opportunity to contest the declaration of disability. If Trump were to do so, his Cabinet and Congress (of which he only would need just over a third of the members of either chamber) would agree with Trump--leaving him both in prison and as president.

Because that seems completely untenable, I end up biting the bullet. My advice to Judge Merchan would be to sentence Trump to a hefty fine and maybe a short prison sentence that he can serve before his inauguration. I say "maybe" because with grounds for appeal, Trump could probably delay serving that sentence for months and thus effectively until he's out of office. 

To be clear, however, that's my advice, not a prediction of what Judge Merchan will do.