Trump wins Iowa Republican caucuses, but indictments pose constitutional questions

WASHINGTON - Former United States president Donald Trump

cruised to victory in the Iowa caucuses on Jan 15

.

He warded off a late challenge from rivals Ron DeSantis and Nikki Haley and cemented his status as the clear Republican front runner in the race.

But Trump also faces 91 criminal charges in four jurisdictions for conduct before, during and after his presidency.

These include an alleged conspiracy to overturn the results of the 2020 election.

That raises a host of scenarios in which the US Constitution would be consulted on a collision of politics and law that the country’s founders could scarcely have anticipated. These scenarios include:

What if Trump is convicted of a crime while he is a presidential candidate? 

A clean criminal record is not a job requirement for president.

The Constitution says only that a president must be at least 35 years old, a natural-born citizen, and a 14-year resident of the US.

So Trump would still be eligible to run for president if convicted – and to serve if he is elected.

But voters can certainly take a conviction into account. A Quinnipiac poll found that 68 per cent of Americans think a felony conviction should make someone ineligible to be president.

What if Trump ‘engaged in insurrection’?

The 14th Amendment, adopted after the US Civil War, prohibits anyone from serving as president or any other public office if that person has “engaged in insurrection or rebellion” against the US “or given aid or comfort to the enemies thereof”.

The

Jan 6, 2021, attack by Trump supporters on the US Capitol,

as Congress was certifying the results of the 2020 election, has brought renewed attention to that provision.

Law professors William Baude and Michael Stokes Paulsen argue that it disqualifies Trump from holding public office again, and a lawsuit towards that end has already been filed by a group of voters in Colorado.

Individual state election officials could seek to bar Trump from the Nov 5, 2024, ballot, but those actions would certainly invite a legal challenge.

The Electoral College, when it meets weeks after the election, or the US Congress, when it convenes to certify the electoral votes on Jan 6, 2025, also could declare Trump disqualified on these grounds.

That would potentially lead to a vote by state delegations in the House of Representatives to choose the next president, something that has not happened in 200 years.

Given the current make-up of the House, that would likely be the Republican nominee, which could well be Trump.

Could Trump, as president, pardon himself?

The president’s constitutional power to “grant Reprieves and Pardons for Offences against the United States” does not apply to convictions on state crimes, such as the charges Trump faces in New York and Georgia.

As for federal crimes, legal scholars are split about whether the president can self-pardon.

Some point to the legal advice given by the Justice Department’s Office of Legal Counsel to President Richard Nixon in 1974 in connection with the Watergate scandal: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”

Others argue that the plain meaning of “grant” (to give to someone else), and “pardon” (to forgive or excuse) suggest it is not a power Trump could use on himself.

A workaround: A president could temporarily cede power to the vice-president, who as acting president could grant the pardon.

Could Trump get pardoned in New York or Georgia?

In New York, the governor has the power to pardon in all state cases except for treason.

In Georgia, the pardon power vests in a parole board, whose five current members have all been appointed by Republican governors. But current rules require an applicant for a pardon to have served at least five years of a sentence before applying for a pardon.

Could Trump be ordered to serve a prison sentence?

This issue is unresolved, but there is an argument that the president’s constitutional responsibilities would override the need to serve a prison sentence – at least while in office.

“Constitutionally you’d have a pretty good argument that you would have to let him out while he’s president,” said Professor Brian Kalt, a Michigan State University law professor whose 2012 book Constitutional Cliffhangers: A Legal Guide For Presidents And Their Enemies anticipated some of the current questions.

He said one option could be the 25th Amendment – a constitutional fallback of last resort that allows a president “unable to discharge the powers and duties of his office” to be temporarily removed. That would still take action by the vice-president, the Cabinet and Congress – a high bar.

If elected, could Trump be impeached again?

The double jeopardy clause of the 5th Amendment – which prohibits prosecuting anyone twice for substantially the same actions – does not apply to impeachment.

So yes, in the event Trump wins the presidency, lawmakers could try once again to force his removal by accusing him of misconduct they consider to meet the constitutional standard of “high crimes and misdemeanours”.

As with Trump’s first two impeachment proceedings, the House, by simple majority vote, could send one or more articles of impeachment to the Senate for a trial.

Trump’s defenders would surely argue that his 2021 acquittal by the Senate, on a charge of inciting the insurrection at the Capitol, settled the issue.

Regardless, it would remain difficult to achieve the bipartisan consensus necessary in the Senate to approve any article by the requisite two-thirds supermajority vote. 

Does Trump have any constitutional defences?

Among other possible defences, including that Trump’s false statements about the 2020 election were protected by the First Amendment, Trump’s legal team has suggested that a former president cannot be criminally punished for anything he did in office.

Trump is “immune from prosecution for acts that he takes in connection with those policy decisions” he made as president, defence lawyer John Lauro told NBC’s Meet the Press.

The Supreme Court has never addressed the issue directly. In another case involving Nixon, the Supreme Court held that the president is immune to civil lawsuits for any actions within the “outer perimeter” of his official responsibilities.

The court has never applied that doctrine to a criminal case, though, and prosecutors are expected to argue that Trump was acting outside his official responsibilities. BLOOMBERG