Dear Reader,

We are gathered here today to bid farewell to the claim that an indictment of a former president is unprecedented. 

It took us some time to arrive at this moment – centuries, in fact – but the end came quickly once the downward spiral began. Now we can look back and trace the downward arc. The first indictment of Donald Trump, out of the Manhattan DA’s office for falsifying business records of hush money payments – remember that one? – was easy: the unprecedented first-ever indictment of a former president. Clean, simple, strong. 

Next came Jack Smith’s case relating to classified documents at Mar-A-Lago and obstruction. That took a bit more effort but wrote itself: the unprecedented first-ever federal indictment of a sitting president. Then, when Smith charged Trump again relating to the 2020 election, we had to add more verbiage: the unprecedented first-ever indictment of a former president for trying to steal an election. We’re running out of room for qualifiers here, but that’ll do. 

And finally, when Fulton County DA Fani Willis lodged her indictment, we were left to cast about for some way to make it new. I don’t know, maybe the unprecedented, first-ever indictment of a former president by a local prosecutor with a six-letter last name in a county south of the Mason-Dixon line? 

Now that the dust has settled on our summer of indictments, the time has come to bury our claims that this is all new, untrodden ground. The indictment of a former president is no longer unprecedented. It’s now quite precedented. It’s amply-precedented. Maybe even over-precedented. 

But fear not, lovers of unknowns and firsts, because we have plenty more terra incognita ahead. I’ve said before in this space that Trump makes the law school hypotheticals come to life. Now he’s doing that, and he’s giving us brand-new hypotheticals that not even the craftiest professor could’ve dreamed up. 

As we move steadily through these perplexing firsts, I urge everyone to embrace the unknown, because there’s plenty more ahead. I’m drawing a distinction here between what we know and what we hope, or what we believe the outcome should be. 

Take, for our first example, the question about whether Trump can pardon himself from Smith’s federal charges if he re-takes the presidency in the 2024 election. The only answer here is that we don’t know. I get the arguments on both sides: “Of course a person can’t be a judge in his own case” vs. “The Constitution places no explicit limitation on the pardon power.” We can argue it, and I’d tend towards the “no” position. But, at this point, it’s opinion and advocacy, not fact. Of course, we may well find out eventually, as a result of the whole Trump mess.   

Here are some of the other crucial unknowns as we move forward: 

• If Mark Meadows was acting partially within his official job as White House chief of staff, but also partially outside those boundaries, is he entitled to removal of his state case from Fulton County to the federal courts? We know this issue perplexed the federal judge who will decide the removal issue, because he specifically requested additional briefing from the parties on just this point. Meadows, of course, responded that if he was acting in some part as Chief of Staff, then the whole case must be removed, while Willis took the contrary position. We could see a ruling from the judge at any moment; whatever he decides, it will surely go up on appeal to the Eleventh Circuit, and possibly to the U.S. Supreme Court. At that point, this particular conundrum will cross over into the land of the known.
• If Meadows succeeds in removing his case to the federal courts, do all 18 of his co-defendants – including Trump – automatically go with him? This is a big one, obviously. Some have wondered why Trump has held off on filing his removal motion thus far, and this could be the answer: recognizing that Meadows has a better argument for removal, Trump hopes to ride his coattails into federal court. Again, the arguments present themselves. Trump (and other co-defendants) will argue that a case is a case, and the DA chose to charge them all together, so if one has to go to federal court they all go with him. Willis likely would counter that each defendant stands on his own merits, and the removal statute is designed to protect federal officials acting under color of law, and not others who happen to get charged alongside them. I’m on the DA’s side on this one, but, for now – we don’t know.
• If a state-level case (against Meadows, Trump, or anyone else) moves to federal court and results in conviction, can a president issue a pardon? Stand back, friends, and gaze upon this gorgeously crafted, perfectly 50-50 hypothetical. Point: the defendant is charged with, and has been convicted of, Georgia state-level crimes, so of course a president cannot issue a pardon. Counterpoint: this conviction came from a federal court, presided over by a federal judge, rendered by a federal jury, so of course the president can pardon. The gods of law school final exams applaud you, reality, for this gem.
• Can a presidential candidate be disqualified before the 2024 election under the Fourteenth Amendment’s “insurrection or rebellion” clause? This one has recently become trendy among academics, retired judges, and a handful of elected Democrats. Regular consumers of this column (and CNN viewers) know that I’m not buying this one. How exactly is this all supposed to work? Who decides whether a candidate engaged in insurrection, and how? Congress? House? Senate? Both? By what vote? Majority? Two-thirds? Or is it up to the courts? A judge? Or a jury? By what standard? Preponderance of evidence? Beyond a reasonable doubt?

The academics declare in useless and conclusory fashion that the Fourteenth is “self-executing,” whatever the hell that means. It’ll be up to dozens of state and local officials, they proclaim, to unilaterally declare that they have decided that a candidate has engaged in insurrection and therefore is ineligible, without any type of hearing or process. Great idea, This won’t lead to chaos, or to widespread public rejection of some local bureaucrat tossing a presidential candidate off the ballot without any hearing, or to Due Process violations (also conveniently contained in the Fourteenth Amendment), or to retributive findings by Republican locals that, say, Joe Biden’s foreign or border policy also constitute disloyal acts, and he must be thrown out too. (Sarcasm voice for the preceding sentence.) In any event, as strongly as I believe this is bunk, we don’t know for sure right now – and we might soon see official actions and lawsuits that give us the first faint outlines of a workable answer. 

My first point in all of this is to underscore just how much unknown territory lies ahead. While we are well past the point where an indictment of a former president is novel because it involves a former president, we nonetheless will soon face all manner of previously unresolved, or unimaginable, scenarios. 

And the bigger point is that it’s perfectly fine not to know. I’ve seen more than one commentator take to the air and confidently proclaim that the answer to the above-referenced unknowns is a straight yes or no. But sometimes the right answer, and the only honest answer, is that there is no answer. Not yet.  

Stay Informed,

Elie

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