Thursday, August 03, 2023

Can the Voters Pardon Donald Trump?

Gerard N. Magliocca

A narrative is emerging that the criminal cases against Donald Trump mean that the next election will be about whether the voters want to pardon him. David French had an op-ed in The New York Times last week in which he said that 2024 is a choice between Trump and the rule of law. 

This narrative is wrong. Trump cannot be pardoned by the voters unless he is eligible to be elected. The Section Three/14th Amendment issue must be resolved in his favor (or Congress must give him amnesty) before the voters can render a judgment. In a sense, an organic two-step process is developing to test the application of the criminal law to a major presidential candidate.

We are facing these difficult choices in part because prosecutors are exercising their discretion foolishly. The Senate's failure to convict in the second impeachment trial and Congress's failure to provide for a swift resolution of the Section Three issue created a vacuum for the criminal law to fill. But that is not an excuse. The pending cases should not have been brought. If Trump is convicted and then elected, people will stop saying Pyhrric victory and start saying Smithic victory.  

UPDATE: Some readers asked me to say more about why the criminal cases are mistaken. Since there are many cases and I have many reasons, I'll need another post for that. For now, though, consider this famous explanation of why prosecuting a former president is a bad idea.   


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