Justice Department's Office of Legal Counsel Concludes: Constitution Prohibits Continued Federal Prosecution of President-Elect

From Special Counsel Jack Smith's filing in U.S. v. Trump:

It has long been the position of the Department of Justice that the United States Constitution forbids the federal indictment and subsequent criminal prosecution of a sitting President. But the Department and the country have never faced the circumstance here, where a federal indictment against a private citizen has been returned by a grand jury and a criminal prosecution is already underway when the defendant is elected President.

Confronted with this unprecedented situation, the Special Counsel's Office consulted with the Department's Office of Legal Counsel (OLC), whose interpretation of constitutional questions such as those raised here is binding on Department prosecutors. After careful consideration, the Department has determined that OLC's prior opinions concerning the Constitution's prohibition on federal indictment and prosecution of a sitting President apply to this situation and that as a result this prosecution must be dismissed before the defendant is inaugurated.

That prohibition is categorical and does not turn on the gravity of the crimes charged, the strength of the Government's proof, or the merits of the prosecution, which the Government stands fully behind. Based on the Department's interpretation of the Constitution, the Government moves for dismissal without prejudice of the superseding indictment under Federal Rule of Criminal Procedure 48(a)….

[T]he defendant will be certified as President-elect on January 6, 2025, and inaugurated on January 20, 2025. This sets at odds two fundamental and compelling national interests: on the one hand, the Constitution's requirement that the President must not be unduly encumbered in fulfilling his weighty responsibilities, see Nixon v. Fitzgerald (1982) ("[t]he President occupies a unique position" and is "entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity"), and on the other hand, the Nation's commitment to the rule of law and the longstanding principle that "[n]o man in this country is so high that he is above the law," United States v. Lee (1882)….

OLC has twice before addressed the amenability to federal prosecution of a sitting President. The first relevant OLC opinion, drafted during Watergate in 1973, explored whether the Constitution's Impeachment Judgment Clause prohibits federal criminal prosecution of a sitting President before the exhaustion of the impeachment process and, if not, whether a sitting President is subject to criminal prosecution. OLC concluded that the Impeachment Judgment Clause did not preclude prosecution of a sitting President, but that a criminal prosecution of a sitting President would violate the separation of powers and "unduly interfere in a direct or formal sense with the conduct of the Presidency[.]"

In 2000, in the wake of the first presidential impeachment in more than a century, OLC issued a second opinion revisiting the question of whether a sitting President could be criminally charged, and again concluded that charging and prosecuting a sitting President would impermissibly threaten the constitutional separation of powers because it would harm the President's ability to fulfill his constitutional role. The 2000 OLC Opinion reasoned that doing so would risk imposing three burdens that would make it impossible for a President to effectively carry out his constitutional duties: (1) the burden of imprisonment, which would physically prevent the President from doing his work; (2) the burden of "public stigma and opprobrium," which could weaken the President's ability to "fulfill his constitutionally contemplated leadership role"; and (3) the mental and physical burdens associated with preparing a defense to a criminal prosecution, which "might severely hamper the President's performance of his official duties."

OLC concluded that, because a pending criminal prosecution would impair the President's ability to carry out these responsibilities to the detriment of the Nation, the constitutional interest in the President's unfettered performance of his duties must take precedence over the immediate enforcement of the criminal law against a sitting President. The 2000 OLC Opinion, moreover, adopted "a categorical rule against indictment or criminal prosecution" of a sitting President. While recognizing that "a particular criminal charge" might not impose all three burdens to the same degree, the Opinion deemed it "perilous" for the constitutional rule to turn on a case-by-case assessment.

Both the 1973 and 2000 OLC Opinions recognized the critical national interest in upholding the rule of law, and stated that the President is not above it. See 2000 OLC Opinion ("Both the [1973] OLC memorandum and the Solicitor General's brief [filed in the District of Maryland in connection with the prosecution of former Vice President Spiro Agnew] recognized that the President is not above the law, and that he is ultimately accountable for his misconduct that occurs before, during, and after his service to the country."); 1973 OLC Opinion ("The Framers of the Constitution made it abundantly clear that the President was intended to be a Chief Executive, responsible, subject to the law, and lacking the prerogatives and privileges of the King of England."). OLC explained that because a sitting President's immunity is "temporary," extending only so far as his term in office, it "would not subvert the important interest in maintaining the 'rule of law.'" 2000 OLC Opinion; see id. (stating that this form of immunity "would generally result in the delay, but not the forbearance, of any criminal trial").

OLC has previously considered the possibility that the harms to the presidency might be ameliorated by returning an indictment against a sitting President but holding subsequent proceedings in abeyance until his term expires. 2000 OLC Opinion ("We have thus separately reconsidered whether, if the constitutional immunity extended only to criminal prosecution and confinement but not indictment, the President's ability to perform his constitutional functions would be unduly burdened by the mere pendency of an indictment against which he would need to defend himself after leaving office."); 1973 OLC Opinion ("To be sure it is arguable that despite the foregoing analysis it would be possible to indict a President, but defer trial until he was out of office."). While the 1973 OLC Opinion did not reach any conclusion on this question, in 2000, after balancing the competing interests that would arise from a federal indictment brought against a sitting President, OLC concluded that "a sitting President is immune from indictment as well as from further criminal process" and that the Constitution would thus prohibit an indictment "even if all subsequent proceedings were postponed until after the President left office." But OLC recognized that the interest in avoiding a statute of limitations bar by securing an indictment during the presidency "is a legitimate one," and it noted the possibility that a court might equitably toll the statute of limitations to permit proceeding against the President once out of office.

Neither the 1973 nor the 2000 OLC Opinion addressed directly a federal indictment that has already been returned against a private citizen prior to his election as President. The Special Counsel's Office therefore sought OLC's guidance on whether this case must be dismissed, or whether the pending superseding indictment against the defendant could be held in abeyance until he is no longer immune from prosecution. OLC concluded that its 2000 Opinion's "categorical" prohibition on the federal indictment of a sitting President—even if the case were held in abeyance—applies to this situation, where a federal indictment was returned before the defendant takes office.

Accordingly, the Department's position is that the Constitution requires that this case be dismissed before the defendant is inaugurated. And although the Constitution requires dismissal in this context, consistent with the temporary nature of the immunity afforded a sitting President, it does not require dismissal with prejudice. Cf. 2000 OLC Opinion at 255 ("immunity from prosecution for a sitting President would not preclude such prosecution once the President's term is over or he is otherwise removed from office by resignation or impeachment"). This outcome is not based on the merits or strength of the case against the defendant….

{As with the 1973 and 2000 OLC Opinions, OLC's analysis addressed only the federal cases pending against the defendant.}

Comments

[Bob from Ohio]

"not guilty" hardest hit

Keep "without prejudice" hope alive!

[Tallman]

"Without prejudice" is a dangerous precedent for our democracy. Wasn't that more-or-less the proximate cause for crossing the Rubicon?

[Martinned2]

Trump certainly has a strong incentive to hang on to power until he dies, just like he needed to run for re-election to avoid going to prison.

[Soronel Haetir]

I do have some problems with "(3) the mental and physical burdens associated with preparing a defense to
a criminal prosecution, which "might severely hamper the President's performance of his official duties", that one applies to pretty much any defendant. I don't see that it makes a whole lot of difference that the president's duties are public rather than personal.

[Absaroka]

If Joe the Plumber is too busy preparing for trial to fix my sink, big whoop, I can find another. But if FDR's trial is scheduled for 10Dec1942, I kinda need him meeting with the Secretary of War instead of his lawyer.

[John Rohan]

We are talking about a man who needs to be on call to authorize a nuclear strike at any time. There are more burdens on the US president than the average citizen, and it impacts the entire country.

[David Nieporent]

Arguing that a trial would prevent Trump from ordering a nuclear strike seems like an argument against dismissal.

[Krayt]

There's also the concept The People knew all this was looming, and still elected him anyway. Nobody is above the law, but we also love democracy. Shall little numerous efforts to hurt a political opponent, recognized as such and rejected by the voters, still hold sway because the opponents still drool to hurt him?

Anyway, scratch one facetious effort.

Still to do: Avoiding a concentrated effort to convince electors to be faithless. I've even given them an argument: The Electors acting as wizened deciders on behalf of The People is the intent, so go ahead and kick him to the curb in December!

[Krayt]

Didn’t California and other states form a pact to assign their electors to the national popular winner? Or did that fall through? Some foresaw a future incident of the “oops” class, where CA residents would have to sit their as their votes went to the other guy, in a situation where it actually mattered. The assumption was the big D would win the popular, but not elector contest, and not that the party roles were reversed. Of course, at that point, lovers of democracy would run to court to stop that from happening.

It doesn’t matter here. Or does it, if the faithless elector vector is followed? Of course, though weasely, faithless electors are constitutional, unlike the weasely tricky arguments for the “alternative” slates, too clever by half. Weasel cleverness for me, but not for thee.

Hmmm. Power hungry weasels are the one constant. Go figure. Damn, you guys are giving Ron and Ginny a bad name.

[Bob from Ohio]

"Or did that fall through?"

Its only triggered when states with a majority of electoral votes join the compact. That has not happened.

Now that the GOP has shown the ability to win the popular vote, the compact will never get another signer IMHO.

[Krayt]

Which also reminds me. If such a scenario ever happened, there would be court cases as the losers née winners in each state scream, arguably rightly, they can’t be ordered to lose. Which side sues depends on which side is being gored (nice double entendre, now that I think about it.)

Anyway, the time to decide the constitutionality is now, not the future when it’s on the line.

You cannot have people running to court trying to change the rules after the election to make their side win. Therefore the nation needs to decide if such a compact is constitutional or not, now, before an election where it makes a difference.

Are you listening, Supreme Court? You like to wait for a case or controversy before doing anything, but if you wait for such an election result before you allow lawwuits, you will have waited too long. And the only honorable thing to do would be to not allow a course change to change the rule after the election to make the other guy win.

[Krayt]

Therefore the compact would have to be upheld, or else we're a banana republic.

[GKHoff]

So if my small state elects Candidate A by a thin margin, but California chooses Candidate B by a landslide, voters in my state will have ceded their voting power to the left coast. Yet the Constitution guarantees a republican form of government to each state (IV, 4). The popular vote compact would violate that clause.

[David Nieporent]

Which also reminds me. If such a scenario ever happened, there would be court cases as the losers née winners in each state scream, arguably rightly, they can’t be ordered to lose. Which side sues depends on which side is being gored (nice double entendre, now that I think about it.)

The Supreme Court has already ruled, in Chiafalo and Baca, that Electors must do as their states command them to do, regardless of their personal preferences. (Most, but not all, states forbid faithless electors.)

[Bob from Ohio]

"Electors must do as their states command them to do"

Subject to the rest of the Constitution, right? A state could not require an elector to only vote for white people.

The compact never received Congressional approval as required by the Constitution. So its not a proper "command" at all.

[David Nieporent]

Despite the language of the Constitution, SCOTUS has never held that congressional approval is required for all interstate agreements. But even if it is, the NPVC is not a command since by its own terms it doesn't come into effect until enough states have entered into it.

[Bob from Ohio]

Its writers and supporters call it a compact. An agreement which only comes into effect upon a certain future event is still an agreement.

You are suggesting that states compacting to reverse the result of an election does not require Congressional approval. Well, its a bold argument cotton.

[David Nieporent]

I am of course not suggesting that, since there is no "result of an election" until after the electors vote.

And obviously states ordinarily do not require Congressional approval to pick electors; the constitution assigns that responsibility solely to the states. It's kind of weird to say that (e.g.) Colorado is free to award its electoral votes to the popular vote winner, and California is free to award its electoral votes to the popular vote winner, but that Colorado and California cannot discuss it and both agree to do that with their individual electors.

[Lee Moore]

And what role, if any, do the federal courts have, if say Colorado welshes on the deal ?

[David Nieporent]

Very possibly none in the absence of a Congressionally approved compact.

[Martinned2]

There’s also the concept The People knew all this was looming, and still elected him anyway.

That's not how (US) law works.

[Brett Bellmore]

I will continue to hold to my prior position: That the Constitution gives Congress quite limited immunity from prosecution, and does so explicitly. It says nothing at all about Presidents having any such immunity.

This means it is improper to interpret it as giving Presidents even greater immunity by mere implication. They knew full well how to give immunity if they meant to. They didn’t, in the case of Presidents.

Now, as a policy it makes sense to drop such prosecutions anyway, because on becoming President he can simply order the DOJ to drop the prosecution, and/or pardon himself. But that's a prudential consideration grounded in economy, not a matter of constitutional command.

[loki13]

I agree with this, Brett.

But given the DOJ's policy, this was inevitable.

[TheAmazingEmu]

Regardless of how absolute you think theories of the unitary executive are, it's fair to say that discretionary prosecutorial decisions is something that President has traditionally had authority over going back to early Constitutional practice.

Since both OLC and DOJ are within the executive branch, it makes sense that the executive branch has reacted internally consistently to protect itself when it chooses to do so. As a legal matter, it's not immunity. As a practical matter, it's the same thing (when it comes to Federal charges). So I tend to agree. Might as well dismiss the indictment without prejudice because the next President would anyway.

[Martinned2]

It sure seems like it would be a good idea for Congress to create something equivalent to the DPP/CPS in England. (That's the Director of Public Prosecutions and the Crown Prosecution Service.) Politicians shouldn't have a say in individual prosecution decisions.

[Davy C]

I'll agree. I would also say, however, that the court should grant a President any continuances he moves for. "I'll be heading the entire executive branch that week" is a good enough reason, IMO.

[Martinned2]

If only he had other people to help him run the executive branch...

If the man has time to play golf, he has time to go to court.

[David Nieporent]

The 2000 OLC Opinion reasoned that doing so would risk imposing three burdens that would make it impossible for a President to effectively carry out his constitutional duties: (1) the burden of imprisonment, which would physically prevent the President from doing his work; (2) the burden of "public stigma and opprobrium," which could weaken the President's ability to "fulfill his constitutionally contemplated leadership role"; and (3) the mental and physical burdens associated with preparing a defense to a criminal prosecution, which "might severely hamper the President's performance of his official duties."

Notably, those are all policy arguments rather than actual legal ones. A stronger argument is simply that the president is the one responsible for prosecuting people, and for the same reason that he can't pardon himself, he can't prosecute himself.

Nevertheless, I am neither surprised nor outraged by this, given that it's a longstanding rule that was not just made up to protect Trump the way so-called presidential immunity is.

[Brett Bellmore]

"and for the same reason that he can’t pardon himself, he can’t prosecute himself."

He could do either, or both. Shouldn't, sure, and almost certainly wouldn't the latter, but he could.

[John Rohan]

Even if he prosecuted himself, if somehow sent to prison, as the authority over the Bureau of Prisons he could simply order his own release, or fire anyone who refused.

[David Nieporent]

You think the president can just order the Bureau of Prisons to release a prisoner from custody? That's an… interesting notion. (Obviously, he can pardon a prisoner, which would result in said prisoner being released. But he can't just issue such an order. Presidents aren't kings. )

[Bob from Ohio]

"But he can’t just issue such an order."

Presidents can't commute a sentence?

[David Nieporent]

It's like you stopped reading one sentence into a five sentence post.

[Noscitur a sociis]

You think the president can just order the Bureau of Prisons to release a prisoner from custody?

Why not? Or are you just saying he’s have to relay it through the attorney general to the BOP director to the office that makes the inmate designation decisions instead of ordering it directly?

[David Nieporent]

Why not?

Because there's a court judgment sending the guy to prison. Again: the president isn't a king; he can't just order federal employees to do whatever he wants them to do. He can only order them to carry out their duties. Do you think that a prison sentence imposed by a judge is just a suggestion that the person be imprisoned? Outside of clemency or some existing statutory process such as parole, on what basis could a prisoner be let out without a court order?

[Noscitur a sociis]

When someone is sentenced to imprisonment in a federal case, they are committed to the custody of the attorney general, who (through the Bureau of Prisons) is responsible for figuring out what to do with the. With a very small set of exceptions, the Bureau of Prisons has complete discretion to decide where an inmate is to be placed for service of a sentence, including home confinement. BOP can and does release inmates from correctional facilities all the time (and sends them back) without a court order, and the law is pretty clear that courts have almost no ability to overrule those determinations. BOP of course has regulations and procedures that they’re supposed to apply in making or changing these designations, but I can’t see any reason why the president/attorney general/director of BOP would lack the authority to make the decisions in any given case.

[Dr. Ed 2]

I'm not sure about that. See: Nixon, Saturday Night Massacre.

[TW]

He could have his acting Attorney General move to dismiss the charges with prejudice which would be considered an adjudication on the merits and then double jeopardy would prevent a future federal prosecutor from bringing them forth again.

[not guilty]

"He could have his acting Attorney General move to dismiss the charges with prejudice which would be considered an adjudication on the merits and then double jeopardy would prevent a future federal prosecutor from bringing them forth again."

Uh, no. Assuming that the pending motion to dismiss without prejudice is granted before Trump takes office, there will be nothing to dismiss.

[David Nieporent]

He could have his acting Attorney General move to dismiss the charges with prejudice

I don't think he can do any such thing. Once the case has been dismissed without prejudice, it's been dismissed, and there's therefore nothing pending to dismiss with prejudice.

[Lee Moore]

So he can instruct the AG to reopen the case and then move to have it dismissed with prejudice.

[David Nieporent]

He cannot instruct the AG to 'reopen' the case, as that isn't a thing. He would have to instruct the AG to reindict him, start a prosecution, and then dismiss it, and the court, not the AG, would decide whether to do so and if so whether it was dismissed with prejudice. I do not think a judge would look too kindly on a purely sham prosecution.

[TheAmazingEmu]

I think that's an additional argument in support of the result that complements it. I'm surprised OLC didn't raise it. But I think all the arguments work hand in hand because the executive branch can certainly prosecute itself (if not the President), but the President can stop a prosecution. In other words, I think it's more of a practical rule rather than a categorical one.

[not guilty]

The 1973 and 2000 opinions of the Office of Legal Counsel are not law. They do, however, reflect policies of the Department of Justice which Jack Smith was and is bound to follow.

The situation giving rise to the policy was that there was both a crooked president and a crooked vice-president in office. It’s been a while since I read the 1973 opinion, but I recall the conclusion that criminal prosecution of a sitting vice-president is permissible, but prosecution of a sitting president is not.

[F.D. Wolf]

The Constitution says, "The executive Power shall be vested in a President of the United States of America." The president is the head of the executive branch, which means he is the head of the Justice Department. So, the notion of prosecuting the President is the idea that the President can prosecute himself. There is no English case of Rex v. Rex. Note this also shows the incoherence of United States v. Nixon (1974).

[not guilty]

United States v. Nixon, 418 U.S. 683 (1974), did not involve prosecution of the President. Nixon's cronies had been indicted, and the Special Prosecutor filed a motion under Fed. Rule Crim. Proc. 17(c) for a subpoena duces tecum for the production before trial of certain tapes and documents relating to precisely identified conversations and meetings between the President and others. The President, claiming executive privilege, filed a motion to quash the subpoena.

[F.D. Wolf]

I'm sure you understand that a prosecution entails an investigation. In a case called United States v. Nixon, who was "the United States" and who was "Nixon"? Functionally, the case was Richard Nixon v. Richard Nixon, the executive branch making a demand of itself.

[David Nieporent]

1) Nixon was not the United States. The president is the head of the executive branch; he is not the country or the government. When criminals are prosecuted, it is United States vs. Doe, not POTUS vs. Doe.
2) The point NG was making was that Nixon wasn’t the subject of a prosecution.

[F.D. Wolf]

When "the United States" initiates a case in court, be it a criminal or civil action, it is the executive branch which brings that case, not the legislative branch or the judicial branch. The head of the executive branch, having authority over everyone else in it, is the President. If the President says, "Nah, let's not bring that case," then the case isn't brought. So, in the legal sense, every case initiated in the name of "the United States" is indeed ultimately brought by the President.

If you cannot grasp that, then I apologize, but I am unable to dumb it down for you any further and I will not attempt to do so.

[JoeFromtheBronx]

Charles I was prosecuted and executed.

In the days of coverture, was a president's wife immune too?

Congress and SCOTUS regulate themselves in various ways. A justice decides on their own whether to recuse.

A president generally lets the Justice Department prosecute crimes without intervening. They can do so here.

Anyway, it is "United States" v. the defendant in this country. It isn't Biden v. the defendant.

[Bob from Ohio]

"Charles I was prosecuted and executed."

An ultra vires act. Treason and a sin to boot.

At least, unlike the French animals, they didn't kill the Queen too.

[JoeFromtheBronx]

Ah. A royalist. Those bloody rebels in the colonies should be stopped, I say.

I found The Tyrannicide Brief by Geoffrey Robertson about a lawyer involved in the prosecution an interesting book.

[Voize of Reazon]

The fact that the case was styled United States v. Nixon instead of Nixon v. Nixon shows where you went wrong with this argument. The President is not the analog of the King, the United States is which is why it enjoys sovereign immunity and the President does not.

[F.D. Wolf]

No, that just demonstrates how case captions work. Some states bring prosecutions in the name of "the State", while others bring them in the name of "the People", but they are functionally the same.

[Noscitur a sociis]

And yet none of them bring cases in the name of the governor.

[JoeFromtheBronx]

The result was expected given current practice. It also shows how Trump in office is a form of obstruction of justice in practice. Then under 14A, sec. 3, he would be disqualified from office anyhow, putting aside SCOTUS's wrongminded opinion. So it goes.

On principle, I am not sure if some absolute rule regarding prosecuting a president while in office -- at the very least indicting them with prosecuting pending -- is necessary. A pardon is more directly self-dealing.

I think it probably would be an academic question in practice. I can foresee some situations where a sitting president would want to waive immunity. Maybe, for instance, an ethical president would not want to avoid a penalty when it is discovered they committed some minor crime & would agree to some mild penalty that would not interfere with their duties. Ditto some local crime, perhaps willing to pay a fine or do a bit of community service.

Anyway, I am not convinced -- FWIW -- with the OLC arguments. But, they are more convincing when addressing not arresting Nixon as compared to let's say an accused spree killer or the like.

[David Nieporent]

A14, S3 applies to insurrection, not "obstruction of justice."

[JoeFromtheBronx]

This paragraph, as the reply suggests, is badly phrased:

The result was expected given current practice. It also shows how Trump in office is a form of obstruction of justice in practice. Then under 14A, sec. 3, he would be disqualified from office anyhow, putting aside SCOTUS’s wrongminded opinion. So it goes.

I meant that the disqualification should have avoided the whole problem. Instead, we are stuck with two wrongheaded situations. I didn’t mean to say obstruction would cause disqualification. Yes, as phrased, it sounds that way.

[Bob from Ohio]

"disqualification should have avoided the whole problem."

And created a much bigger problem. SCOTUS was wiser than you.

He won you know, the people rejected your bitter dead-ender position.

[JoeFromtheBronx]

Conservatives regularly allege liberals wrongly want the courts to decide something because it is pragmatically useful. That isn’t how the Constitution should be applied. Yada yada yada.

I grant Trump v. Anderson was a prudential decision in certain ways but think it was incorrectly decided. To avoid problems, Congress has the power to remove the disqualification by the necessary vote. In theory, Congress can also under the terms of the ruling enforce the provision.

The voting population elected Trump.

It doesn’t have the power to waive the Constitution. Everyone around here didn’t think the PPACA was constitutional simply because the voting public elected Obama and the congressional majority that voted for it.

[Brett Bellmore]

"Conservatives regularly allege liberals wrongly want the courts to decide something because it is pragmatically useful. "

Not quite. That's a self-flattering 'liberal' interpretation of the actual complaint, which is that liberals want the courts to decide something because liberal ideology demands it.

Conservatives don't often think liberal ideology is pragmatically useful, remember.

[David Nieporent]

Gotcha. Yes, that makes more sense, and is of course true: if SCOTUS hadn't invented a special A14S3 doctrine, then this whole situation would've been avoided.

[Area Man]

Tangentially, people keep saying that the president can't pardon himself, which may or may not be true. But it seems to me that, since the ratification of the 25th Amendment, there's an easy workaround. That Amendment says, "Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President."

Thus, Trump could simply send that declaration to Congress, Vance would become acting president, Vance would pardon Trump for any and all federal crimes committed up until that point, and then Trump would send the written declaration to resume his powers and duties. Easy peasy.

Moreover, Trump could order DOJ to reindict him, he could waive all processes and immunities, and he could order the respective prosecutor to rest his case without putting on any evidence. A motion for directed verdict would then have to be granted, and any future prosecution would be barred by double jeopardy.

[JoeFromtheBronx]

The Vance pardon idea has been cited by others. Yes.

Trump can have some medical procedure, presidential powers are temporarily transferred to Vance, etc.

The last part could be addressed by impeachment. It also might be considered an obstruction of justice. In theory. Granting under Trump v. U.S., he would be immune.

[John F. Carr]

The fake trial option requires the cooperation of a judge.

The Supreme Judicial Court of Massachusetts once overturned the not guilty verdict in a pretend trial – a frustrated judge started a trial when the prosecution wasn't ready with the intention of having insufficient evidence. I think more recent U.S. Supreme Court precedent says the SJC was wrong.

[Area Man]

“I think more recent U.S. Supreme Court precedent says the SJC was wrong.”

That’s my understanding, too.

And I should be clear, I don’t condone either option outlined above, especially the second. I just think they’re lawful options open to Trump upon his resumption of the presidency. And, as far as I’m concerned, both are also impeachable offenses—not that that would go anywhere, unfortunately.

[Noscitur a sociis]

The fake trial option requires the cooperation of a judge.

How so? Whar could a judge do to stop it?

[Noscitur a sociis]

I don’t think you even need to go that far: all the president needs to do is resign 30 minutes before the end of their term and have the vice president take care of it then. (It would also make sure they maximized the range of stuff they got pardoned for!)

[David Nieporent]

Would a veep do so if he had future political ambitions of his own?

[John F. Carr]

An episode of the TV drama "Quincy" had a pre-arranged acquittal. Quoting Wikipedia:

A man who kidnapped a young girl offers a ransom demand: That he be tried and acquitted of the crime (invoking double jeopardy) and $500,000 in cash in exchange for the girl, all the while thwarting efforts by Quincy and Monahan to find her by not revealing any information.

The prosecutor threw the case in a way that could be seen as gross incompetence rather than malice. The judge said he was going to try to get the prosecutor disbarred.

[John F. Carr]

Judge Chutkan promptly granted the motion to dismiss with a short opinion explaining her decision.

https://www.courtlistener.com/docket/67656604/united-states-v-trump/?page=3

[F.D. Wolf]

The indictment was dismissed without prejudice, naturally, so could be re-filed later, but as all statutes of limitations will likely have run out by the time Trump leaves office, that seems highly unlikely.

[JoeFromtheBronx]

The motion to dismiss referenced that the OLC noted the possibility of a court equitably tolling the statute of limitations.

[F.D. Wolf]

Yes, that is a good point. I'm sure we all look forward to a protracted legal battle on that question.

[Roger S]

The Trump DoJ could formally notify him that charges have been dropped, and the files have been closed.

[Noscitur a sociis]

What is it that you think that would accomplish?

[Roger S]

It would remove uncertainty about being charged again.

[Noscitur a sociis]

In what way would “formally notify[ing]” him that the “files have been closed”* affect the ability to charge him again in the future?

*Trump was served with the motion to dismiss and the order granting it, and his lawyers were told that it was coming beforehand, so I’m not sure what additional formality you have in mind.

[F.D. Wolf]

Obviously, a Trump Justice Department was not going to proceed with the cases against him once he assumes office on January 20, and the cases would obviously not be concluded by then.

A succeeding administration could theoretically try to revive the case, but, for the sake of the country, one would hope it would have the good sense to just let the matter drop.

[Commenter_XY]

This would be the best outcome, pragmatically = A succeeding administration could theoretically try to revive the case, but, for the sake of the country, one would hope it would have the good sense to just let the matter drop. -- but I see no inclination toward that, at this point in time.

[Noscitur a sociis]

As I noted in the open thread, I don’t equitable tolling is not available in federal criminal cases: I would also note that the OLC memo’s discussion on this point is both extremely cursory, and more focused on Congress’s ability to enact a statutory rolling rule (which of course is not going to happen here).

[SRG2]

He was a crook before the indictments, he was a crook while the cases were current, and now that they've been dropped, he's still a crook.

[F.D. Wolf]

Thank you, Joy Reid. The fact that Trump was endorsed by practically every law enforcement agency in this country demonstrates how much credence people who actually know and care about law enforcement placed in all the bogus charges brought against him.

[SRG2]

Or alternatively the moral corruption of police unions was much in evidence. As has been noted, "law and order" is never about law and always about order. Trump supports "us" v "those people" - and has even suggested that the police manhandle suspects, so of course the police support him.

Question: how often have law enforcement groups supported police whistleblowers over bad cops? If those groups truly supported the law, the answer would be "every time". is that what we observe?

[John F. Carr]

More than 10% of the docket entries in the D.C. case are attempts by outsiders to intervene in or influence a criminal trial, mostly rejected with the note

Even if construed as a motion for leave to file an amicus curiae brief, the court is not persuaded that filing this submission is warranted. Although courts have in rare instances exercised their discretion to permit third-partysubmissions in criminal cases, neither the Federal Rules of Criminal Procedure nor the Local Criminal Rules contemplate the filing of amicus curiae briefs. At this time, the court does not find it necessary to depart from the ordinary procedural course by permitting this filing.

In the Florida case Blackman and Tillman successfully got their argument in by this unconventional path.

[DaveM]

Guilt or innocence completely aside, we should all be very thankful this Thanksgiving that these politically-colored cases will likely die on the vine. Imagine the reverse, where lawfare actually worked to keep a political candidate out of an election.

We would see NO END to lawfare. Every state AG would be cooking up creative new ways to prosecute, with the sides flip-flopping every election. This would be a huge disservice to the nation.

So for the moment we have some breathing room. There have been dozens of attempts to throw candidates off the ballots, and though none of them have succeeded in court (I think), they were enough to get at least one candidate to drop out of the running. Although it was the Democrats who were filing the suits this time, we should be under no illusions that the Republicans aren't armed and ready to do likewise should they feel it necessary.

It was a near thing.

In the words of George Washington, "may we unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him ... to render our national government a blessing to all the people, by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed"