Donald Trump’s reckless criminality has not only placed him in dire legal peril. He has also put the entire country at risk of an unprecedented constitutional crisis. The four major cases against Trump are each damning in their own way and present possible prosecutorial challenges, but Trump’s guilt in all of them seems indisputable. Unless Republican jurors engage in a historic act of jury nullification, it seems very likely that the former president will be convicted on at least one of the charges.
Despite this, or perhaps because of it, Trump is dominating his Republican rivals in GOP primary polling. It is unlikely that any new revelations will alter Republican primary voters’ views. Because Trump is likely to become the GOP presidential nominee, his criminality has become the country’s problem. If he wins the election, it will plunge the nation into crisis.
Each of the cases against Trump will follow its own timeline. Special Counsel Jack Smith has drawn up a narrow indictment focusing on just a few crimes and a single defendant. This was likely done partly to maximize the chances of conviction and ensure as rapid a trial as the system would allow. Fulton County District Attorney Fani Willis has drawn up a sprawling and comprehensive case against Trump and his many alleged co-conspirators that is much more thorough but whose prosecution will likely extend well past the election.
If Trump is convicted of the federal charges related to his purloining of classified documents and attempted theft of the 2020 election, the 2024 election may hinge on whether Trump should sit in prison or the White House. If he wins, Trump will almost certainly attempt to pardon himself. He has insisted that he has the right to do so and reportedly almost did it while in office. But it’s not at all clear that any president has that right. If presidents could do such a thing, they could commit mass murder in broad daylight and pardon themselves later that day. If pliant members of Congress refused to impeach for such brazen crimes, presidents would become unaccountable dictators. A self-pardon by Trump would almost certainly reach the Supreme Court. But even if a majority of justices refused to allow it, Trump would almost certainly ignore the ruling, precipitating an even greater nullification crisis.
The Georgia case is even more dire for Trump—and the American constitutional system. If Trump is convicted on the state charges, he cannot pardon himself. Nor will the GOP governor, assuming he was inclined to do so. Pardon power would fall to the Georgia state parole board. But in Georgia, pardons are only considered five years after a sentence is completed. (The racketeering charge carries a potential incarceration of five to 20 years, although state judges have discretion to suspend prison time.) The thought of Trump behind bars already has some Georgia Republicans desperately pushing to alter state law and transfer pardon power to the governor.
Given the timelines of the trials, the possibilities are mind-numbing. In one scenario, Trump could be convicted on the federal documents case, awaiting sentencing, or even sitting in prison when ballots are cast next autumn. It seems unlikely, but strange things can happen in politics. If Trump wins from jail, either the outgoing president would have to pardon him, or he would need to take office from federal prison and then attempt to pardon himself while running the executive branch from behind bars.
Alternately, Trump could remain free on the federal counts and win the November election, only to be convicted on the Georgia counts in 2025. Trump would most likely refuse to be taken into custody, setting up a showdown between the states and the federal government and among law enforcement authorities.
Part of the fault for all this lies with weaknesses in the U.S. Constitution and all presidential systems of governance. Given enough partisan polarization and an ambitious and immoral enough chief executive, presidential systems tend to fall into these crises. In many ways, America has been lucky not to have experienced this sort of thing before.
But the Founders also did not anticipate the poison of a mass propaganda outlet like Fox News or an electoral base so monomaniacally inclined to punish its perceived domestic enemies that it would elect an authoritarian. The Electoral College was designed to allow wiser heads to prevent such an outcome no matter what the voters chose to do. It was not a great solution, but it was the best they could think of then. Now, of course, that very institution has been turned on its head to potentially enable what it has been designed to prevent: the installation of a dangerous tyrant at the pinnacle of power.
The majority of the blame here lies with the Republican base, and with the conservative infotainment complex (principally, Fox News) for putting ratings ahead of responsibility. The remainder rests with the cowardice of Republican leaders who refused to risk their positions to end Trump’s reign.
Some reforms could reduce the chances of these Trumpian constitutional nightmares from happening again. These might include moving to a national popular vote, reforming or eliminating the Electoral College, codifying the independence of the Justice Department, reducing the length of the lame duck period, explicitly banning presidents from pardoning themselves, and clarifying the list of crimes that would disqualify someone from the presidency. Many of these are heavy lifts under the American system, but they are not impossible, and they should be able to get bipartisan support.
Ultimately, the parties and the voters put the country in this position. If Republican political leaders and primary voters cannot put the country first, it will be up to the rest of us to avert the biggest constitutional crisis since the Civil War.
Author: David Atkins