Claire Finkelstein, Algernon Biddle Professor of Law and Professor of Philosophy, has co-authored a new paper that explores what would happen to pending trials if Donald Trump wins the 2024 presidential election.
“When an Indicted Candidate Wins the Presidency: What Happens to the Trials If Donald Trump Wins the Election?” published in the Southern California Law Review, is co-authored by Richard Painter, University of Minnesota Law School Professor and former Associate Counsel to the President and chief White House ethics lawyer for President George W. Bush.
The authors explore the unprecedented circumstances surrounding this presidential election and the series of urgent legal questions that will be raised if Trump wins.
“For the first time in U.S. history, one of the two leading candidates for president is a convicted felon and is in the middle of multiple criminal trials on other charges in both state and federal courts,” explained Finkelstein. “Our paper considers constitutional history, caselaw on presidential immunity—including the Supreme Court’s recent decision in Trump v. United States—and the implications for the rule of law, and hence for the longevity of U.S. democracy, if a sitting president is effectively above the law.”
The paper examines three questions that the authors argue require urgent examination both prior to and immediately after the 2024 presidential election. The first question asks, regarding the federal charges prosecuted by the Department of Justice (DOJ), does the DOJ’s 50-year-old policy of never indicting a sitting President apply to a previously indicted individual who is elected president after indictment and is in the middle of ongoing criminal trials?
Second, if the DOJ’s policy does not block continuing with the prosecution, would the president’s usual right of removal apply to allow him to fire Special Prosecutor Jack Smith or otherwise use the president’s control of the DOJ to effectively end the two federal criminal cases against him?
And lastly, regarding state prosecutions, how protected would each of these state processes be in the face of claims of federal preemption and arguments of executive privilege, immunity, and authority?
Notably, the authors argue that the DOJ policy of not indicting a sitting president does not apply to an already indicted individual who enters the presidency with trials already underway.
Read more at Penn Carey Law.
