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At 02:11 the August 15, 2023 video CNN's Haberman on the irony of Giuliani’s indictment for racketeering an exchange between CNN anchor Kaitlan Collins and White House correspondent for The New York Times and political analyst for CNN Maggie Haberman goes as follows:

COLLINS: There are so many co-defendants listed in this new indictment, which, I mean, immediately made me think of the concern that he has about the potential for them to do. I mean, there's a lot of opportunities for people to cooperate here.

HABERMAN: There are, and he is aware of that. And it is one of the things that I believe has concerned him about this indictment. Also, the fact that it is in state court, it is not something he could control if he becomes president again, although I think there's an argument as to whether a state case would actually go forward against the sitting president the way this is.

As a matter of practice and profession Haberman chooses words carefully based on rigorous background research, so it's reasonable to assume that "I think there's an argument as to whether a state case would actually go forward against the sitting president" is not strictly a personal opinion but is informed by experts.

But she doesn't elaborate further, so I'd like to ask:

Question: Are there strictly political arguments1 why a US state racketeering case against an individual would not move forward if the individual becomes president?

1Political arguments and (if they exist) relevant political precedents are welcome. Law-based answers should be posted at the companion question about legal arguments in Law SE.

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    I'm not entirely sure what a "strictly political argument" would look like, other than "the DA didn't get re-elected and the successor didn't pursue the case" which isn't dependent upon whether the defendant becomes a sitting President or not.
    – ohwilleke
    Aug 16, 2023 at 4:59
  • @ohwilleke "there can not be a strictly political argument here" could be an answer if it can be supported, but I think you've already found the existence proof that this is indeed answerable. I'm primarily interested in the legal arguments at the companion question in Law SE, but my previous question there received a politics SE answer, so in case someone there is inclined to do so again, I thought I'd provide an appropriate space for that. Do you think the legal question should be asked here instead or perhaps combine everything in one here?
    – uhoh
    Aug 16, 2023 at 5:06
  • @ohwilleke there's still time to delete that one (until an answer is posted) any advice is appreciated.
    – uhoh
    Aug 16, 2023 at 5:07
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    I'm open to the idea that there are both Politics.SE and Law.SE answer to the question, I'm just a little unclear about what kind of answer would qualify as a political one even though I recognize that possibility that someone more clever than I could come up with one.
    – ohwilleke
    Aug 16, 2023 at 5:14
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    I think there are answers to this already. The political (rather than legal) point is the opinion that criminal cases against a sitting president should be handled initially by the (political) impeachment process. By way of context Gov. Rod Blagojevich was impeached before being put on trial, whereas Gov. William Langer was tried and convicted as a sitting Governor, then removed (in a constitutionally questionable way) by the State Supreme Court.
    – James K
    Aug 16, 2023 at 7:34

5 Answers 5

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Well, laymen-legally speaking (since I am not a lawyer), the Supremacy Clause

Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions. It prohibits states from interfering with the federal government's exercise of its constitutional powers, and from assuming any functions that are exclusively entrusted to the federal government. It does not, however, allow the federal government to review or veto state laws before they take effect.

is enough. A US President exercising the powers of his office is part of the the Federal government exercising its constitutional powers. If state laws cannot prevent him from doing that, then they can't press a criminal case against him.


Other answers have raised the points about precedent that the court has established with respect to

  • civil cases
  • production of materials (e.g. documents, records, or other physical items) as evidence in criminal cases.

These are irrelevant.

The reason they cannot be considered as interfering with the President's exercise of his constitutional powers is that they can be delegated. Court cases and material production can be handled by lawyers and do not have to require the President's personal attention (with the possible exception of testimony).

But a criminal charge risks causing a loss of personal autonomy, life, or limb. So it cannot be even theoretically considered as covered by precedent which only established that paperwork or expenses can be imposed on a sitting President. There is nothing in precedent to allow a state court to force a US President to risk personal autonomy, life, or limb to satisfy a state law. And any attempt by a state to enforce such a law would run directly against the Supremacy Clause.

A political case here is much more pragmatic.

If such a state law existed during the time of the Civil War, then it could be used by the Southern states to charge Lincoln. So pressing such a state case against a sitting President can be argued to be allowing a precedent which (even if it doesn't amount to a rebellion itself) can enable a mechanism for a future rebellion to succeed.

Since priorities have to be established in such a way as to choose the lesser of 2 evils, that means that even if the case for a state RICO statute is clear, the court (and I mean SCOTUS) would likely find it to be a higher priority to not allow a future-rebellion-enabling precedent.

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  • In the case of the South prosecuting Lincoln, it'd be removed to Federal Court and dismissed under immunity for official acts. Courts have already ruled that this immunity doesn't cover unofficial acts (although the boundary is complicated)
    – bharring
    Aug 17, 2023 at 20:12
  • @bharring they would create a law punishing him for the color of his shoes if they thought it would give them a legal way to put him in jail. States control their laws. That's the thing. It would give every state an unprecedented ability to influence the Federal government if they can use state laws to jail a sitting President.
    – wrod
    Aug 17, 2023 at 22:35
  • Let us continue this discussion in chat.
    – bharring
    Aug 18, 2023 at 1:15
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    I'm not sure if this reasoning works. Presidential elections are run by the states. If state laws to protect the integrity of the presidential election (i.e. state criminal law) do not apply to the sitting president (who may also be on the ticket in that state for re-election) then isn't that a major loophole? Taking this reasoning to the extreme, what would prevent a sitting president up for re-election from trying to interfere in every state to win the election?
    – JJJ
    Aug 18, 2023 at 11:54
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    @JJJ en.m.wikipedia.org/wiki/Removal_jurisdiction might help
    – bharring
    Aug 18, 2023 at 14:17
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While the president isn't outright immune to state prosecutions, there are at least two major factors limiting their prosecution.

  1. Federal officers have immunity when acting officially

This means a state can't charge an FBI agent for faithfully executing a federal search warrant for example.

How wide-ranging this immunity is is debatable, but it clearly has limits. For instance, fraudulent records keeping at the Trump Organization was ruled too far outside official duties for the argument to merit significant discussion.

It should also be noted that there's an argument that this doesn't apply to Presidents due to how the law defines Officers, but that argument has failed when it has been made in court.

So if a state were charging a president with RICO for presidential reasons, the charges would be tried in federal court, and he would be found to be immune.

Note that acts of a private citizen who was later elected president could not be official duties, so would not be covered.

  1. All federal prosecutors and most federal law enforcement officers report up to the President

While this doesn't shield a sitting President legally, it does shield them practically. It is argued (the DOJ has written a clear memo on this) that there is no mechanism that could actually charge/prosecute a sitting president. For example, Mueller was very clear that he could not charge Trump regardless of the evidence ("Charging the President with a crime was therefore not an option we could consider").

Neither of these would apply to State charge for acts when they weren't President.

Also, it's been established that being convicted/incarcerated doesn't make you unable to be elected President. Further, there may be political or logistical allowances for a President who was convicted, but sentencing and punishment are separate from prosecution and conviction.

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  • re last paragraphs. The 1st sentence maybe correct. But it does not imply the 2nd sentence. Being a convicted person does not, in itself, preclude one from becoming President. But the conclusion that an incarcerated person, who becomes President, can be compelled to remain incarcerated runs against the Supremacy Clause. A US President cannot remain a ward of a state for the duration of a Presidency because it would significantly interfere with the interests of the United States. Whether a State ends or suspends the incarceration for the duration of the Presidential term is up to the state.
    – wrod
    Aug 17, 2023 at 18:08
  • The 2nd isn't supposed to follow from the first, they are two different claims.
    – bharring
    Aug 17, 2023 at 20:07
  • The second sentence was about conviction not necessitating incarceration. For instance, a Compassionate Release or a death before the conclusion of a sentence does not negate the conviction.
    – bharring
    Aug 17, 2023 at 20:14
  • fair enough, but I still think you are using the 1st sentence to buttress the claim that a criminal conviction or an incarceration has been all-but-sanctioned by precedent. Which doesn't hold up. I agree that you haven't outright stated a direct causality. But if it's not there to buttress this claim, then I don't see why it's there at all.
    – wrod
    Aug 17, 2023 at 23:02
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    Mueller only that said Justice Department guidelines recommend not charging a sitting president, and because of that he voluntarily choose not to pursue certain areas of investigation. Aug 18, 2023 at 0:49
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Question:

Are there strictly political arguments why a US state racketeering case against an individual would not move forward if the individual becomes president?

Political Arguments:

I think semi-plausible ones have already been used by the defense and denied in various courts. What you are left with border on or are entirely within the realm of the ridiculous. They are not persuasive legally nor politically to anyone who hasn't already made up their minds.

  1. If a President were elected while facing charges, one could argue the People had spoken, and the People didn't agree with the charges. Not to dismiss the charges would be un democratic, and deny the people their chosen President.

  2. An elected President serving from jail would be logistically impossible and might even endanger the country. What would happen if someone attacked outside of visiting hours? So he can't serve a prison sentence.

  3. The secret service doesn't believe it can protect a President inside a jail.

  4. He can't serve from jail, and if you try to deny him his elected office you would be just as guilty as what you are accusing him of doing?

  5. Prison cells in Georgia are not large enough to contain a SCIF.

  6. The Chinese President refuses to meet with the American President in the Prison.

  7. Prison uniforms give him a rash, and thus amount to cruel and unusual punishment?

  8. Can't do it, he looks terrible in stripes?

  9. Germs.

  10. The Cabinet when speaking to the President would find the constant interruptions from the Prison phone to add nickels too distracting?

  11. Melania doesn't allow sleep overs?

  12. He's allergic to peaches?

Short Answer:

Yes, while a sitting President enjoys influence or effective immunity from federal charges and many types of state charges and lawsuits. An ability to escape the Georgia criminal RICO charges are not covered by an existing precedent (real or implied), and would likely require a new federal court finding to stop. Such a ruling would be unlikely given the federal courts on multiple occasions over the last few years, have found the then President was not performing actions relating to his federal duties when his offenses occurred.

Answer

A President has immunity from civil lawsuits for actions taken while in office limited to the performance of his presidential duties (precedent: Nixon v. Fitzgerald 1982). He also has broader effective immunity from criminal prosecution for actions taken while in office, which is theorized by some scholars and has been adopted for decades by the Justice Dept. but never tested in court. This broader criminal immunity is not supported by the Constitution, standing law, or any court finding. It's supported by two memo's from the Legal Council's office dating back to (1973 & 2003) and decades of justice dept. precedent. President Trump's lawyers have tried to exercise both the President's civil and criminal immunity in trying to get his various troubles dismissed over the last two years and have been denied in multiple courts. The Judges finding the events he's being prosecuted for did not fall under his Presidential duties.

To stop a State RICO charge given the courts have already ruled much of his activities did not fall under a President's existing immunity, would likely take an intervention by either the Federal Courts, state legislature or possible the Governor of the State. Federal Courts have already ruled. State legislature in George has already tried to reign in the Georgia state prosecutor prior to the indictment, unsuccessfully. If convicted the Governor of Georgia doesn't have the authority to pardon prior to the convicted serving out his entire sentence.

From Comments

Might want to clarify that a President does not have literal outright immunity.

Correct. Not blanket immunity, he has limited civil immunity and a pseudo defacto immunity criminally. I rewrote my answer to make my position more clear. Thank you for the input.

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    Might want to clarify that a President does not have literal outright immunity. What they have is (1) officials have some immunities relating to official duties, and (2) as federal prosecutors and law enforcement officials all report up through him there is no mechanism to charge/prosecute. But he is *not immune.
    – bharring
    Aug 17, 2023 at 12:45
  • Your point “the secret service doesn’t think they can protect a president in jail”. I assume that if trump was convicted to jail they would have to at least try to protect an ex-president in jail.
    – gnasher729
    Aug 17, 2023 at 19:04
  • @gnasher729, I think the question assumes he wins the election.
    – user47010
    Aug 17, 2023 at 19:19
  • I like how this answer was smart enough to focus on the political reasons, as the question asked.
    – bharring
    Aug 18, 2023 at 15:53
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Question: Are there strictly political arguments1 why a US state racketeering case against an individual would not move forward if the individual becomes president?

There's a political theory claiming that the indictments are used a tool to make Trump more popular than other Republican candidates for President, as Democrats believe that defeating Trump would be easier than defeating DeSantis or other potential nominees. So if Trump ends up elected President there would no longer be an incentive to prosecute him and we might see the cases dropped or quietly shelved. It would be Trump's second term, so he won't be able to run again.

Using a similar tactic, Democrat groups have funded extremist Republican candidates in nine states in the hopes of making them easier to defeat in the general election. In some cases it worked, in other cases it backfired. It remains to be seen whether or not promoting Trump into the spotlight would end up a wise political move.

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  • The last line assumes the theory in the first paragraph is accurate without any support
    – bharring
    Aug 18, 2023 at 17:40
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A political argument made by whom for the benefit of whom?

I would presume it would potentially be bad for the people of the polity (no reason why the question should be limited to states, there are also county and city governments that could potentially indict someone before or during a presidency) pursuing such an indictment. Although that might be offset, particularly if it was a smaller polity, by increased tourism bringing greater benefits.

It could potentially be beneficial to the political career or finances of the prosecutor, bringing both funds and recognition. If allowed to go forward, it could easily result in beneficial political blackmail.

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