Why Trump Could Avoid State Criminal Liability If He's Re-Elected President

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I admit it: I've been sitting here fat, dumb, and happy. I assumed that if Donald Trump were re-elected president in 2024, he could then evade federal criminal liability -- but he'd still be liable for any convictions under state law. Thus, if Trump were convicted by the Manhattan District Attorney for the charges related to the hush money paid to Stormy Daniels, or if Trump were convicted in the indictment for election interference likely to be handed down shortly by a grand jury in Fulton County, Georgia, there would be no way for Trump to avoid the punishment in those cases.

But along came the recent article by Paul Rosenzweig in The Atlantic showing that I haven't been thinking hard enough. Rosenzweig devotes the bulk of his article to explaining how a re-elected Trump could stop federal criminal prosecutions against him. Even if Trump were convicted in some federal criminal case before Election Day, he probably wouldn't yet be imprisoned; appeals would be pending. And the instant Trump became president, he'd tell the Department of Justice to dismiss the cases against him. (Alternatively, Trump could try to pardon himself, which might actually work. In any event, a self-pardon would, at a minimum, raise an issue that would linger in the courts for years until the Supreme Court decided if a self-pardon was constitutional.) If re-elected, Trump would never do jail time in a federal case.

Until I read Rosenzweig's article, however, I hadn't considered the difficulties in jailing Trump even if he were convicted before Election Day in a state criminal proceeding. Assume that Trump is convicted either in New York or Georgia before Election Day. Appeals would still be pending as of Election Day, and Trump is very unlikely to be imprisoned while those appeals were pending. Prompted by Trump, the Department of Justice would instantly raise constitutional objections to permitting state prosecutors to pursue the president while he was in office. If state prosecutions of a sitting president were permissible, what's to stop some lunatic state prosecutor from pursuing a criminal case against Joe Biden tomorrow? The state prosecutions might legitimately be shut down because they may be impermissible.

Moreover, if Trump were prosecuted in Georgia, Trump could encourage the Republican-led Georgia state government to pass legislation barring any state prosecutor from pursuing a sitting president while he was in office. Or the state legislature could remove, or limit the power of, the Fulton County District Attorney. Fearing a mean tweet or some other presidential retribution, state legislators might well do Trump's bidding.

New York, a Democratic-led state, poses a trickier problem for Trump, but perhaps not an insurmountable one. For starters, the charges against Trump in New York may be defeated on legal grounds or, even if Trump were convicted, might not result in jail time. Rosenzweig suggests other things that Trump could do to shut down proceedings -- such as withdrawing federal law-enforcement funding from New York or telling the FBI not to assist with cooperative investigative efforts.

But just a few more minutes' thought suggests a multitude of other things that a vindictive president could do to bludgeon an uncooperative state. For example, why should Trump ever declare an emergency when a storm hits in New York? If a district attorney in New York were prosecuting Trump, then Trump could refuse to authorize disaster-relief funds for New York. New York's a solidly Democratic state, so the state would never vote Republican in an election anyway. Who cares if New Yorkers come to dislike Trump even more violently than they do now? Screw 'em.

So please don't rest comfortably, as I was, assuming that Trump can't evade liability in criminal prosecutions pursued at the state level. I fear that re-election could, indeed, be Trump's get-out-of-jail free card.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon's Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.