The coming Trump constitutional crisis — and how to avoid it

Trump's conviction in Georgia poses a constitutional challenge like nothing we have ever seen, and for which there are no available political tools for redress.

Most observers think that the Supreme Court will reverse the Colorado judicial decision disqualifying former President Donald Trump from running for president. The path of least resistance appears to be “letting the voters decide” whether Trump is fit to serve.

But when the high court considers the larger legal context, it may well conclude that affirming the Colorado decision is the wisest course. Reversal is not likely to leave the decision with the people, but will instead set us on a path of constitutional crisis of a magnitude not seen since the Civil War.

The legal crisis threatening this electoral cycle is Trump’s pending criminal trial in Georgia on charges of conspiring to interfere with the 2020 election. There is a substantial possibility of conviction, as evidenced by the guilty pleas of his codefendants. Some of the charges against Trump carry mandatory minimum sentences of imprisonment.

For Trump’s opponents, the meaning of the Georgia case lies in his abuse of office. Terrible as that might be, it is not the source of the constitutional crisis. The voters are free to favor corrupt candidates. Abuse of office is not the problem; conviction of a state crime is.

Conviction in Georgia poses a constitutional challenge like nothing we have ever seen, and for which there are no available political tools for redress. How would a president govern from a jail cell?

There is neither law nor precedent to cover this situation. The closest parallel might be the secession of a state, but the federal government is not about to invade Georgia to free Donald Trump from the consequences of a lawful conviction.

A central principle of constitutional law is that state criminal law is generally for the state alone to decide. The Supreme Court has no power to reverse an ordinary criminal conviction when the state law does not conflict with federal law and due process standards have been met. There is no legal principle of “protecting” the president from state criminal law. He has to pay his taxes, and he has to serve his time.

Trump argues that, for the actions he took while president, he is absolutely immune from federal and state prosecution. This argument is unlikely to succeed. The Supreme Court has held that a president has immunity from civil lawsuits for his officialacts. But it reached that conclusion by contrasting civil and criminal actions, arguing that the government interest in prosecution for crime is far more important than the interest of a private person in obtaining civil damages. The president, we are regularly reminded, is not a king.

Nor does the president have the power to pardon anyone convicted of a state criminal offense, including himself. He cannot order the Justice Department to drop the case, for it is not their case. Indeed, not even Georgia’s governor has the power to pardon a convicted Donald Trump — state law assigns the pardon power elsewhere and makes it unavailable until a sentence has been served. Perhaps Congress could pass a statute preempting the state law, but it is very unlikely to do so.

In truth, no one has any idea of how to deal with a situation of conviction in Georgia and electoral victory. There is no “get out of jail” card that comes with a national election. This would be a political crisis beyond the capacity of our legal institutions to fix.

The best response to an irresolvable problem is to avoid it.

The Supreme Court acted to settle an electoral crisis that threatened to overwhelm our institutions once before. In the 2000 election between George W. Bush and Al Gore, the Florida vote count was literally too close to call. Florida’s political institutions might have tried to act in the face of this “electoral tie,” but Bush’s brother Jeb was the state’s governor — not a situation likely to create trust in the outcome.

Unable to call for a “do-over” vote, the Supreme Court lent judicial legitimacy to the inevitably tainted outcome of a failed election. The court suffered a loss of prestige, but quickly recovered.

A decision affirming the Colorado Court, unlike Bush v. Gore, would offer a highly plausible interpretation of the Constitution. Nor could the court be accused of partisanship in reaching this result. Indeed, if the Trump-appointed justices were to rule against him, the prestige of the court would soar. The nation might not understand the threat underlying such a decision, but most voters would welcome a return to ordinary politics. President Biden has already signaled that without Trump running, he might drop out. A new generation of political leaders could contest the office.

The Colorado case may be the last, best chance of preventing the constitutional tsunami that is building in Georgia. Whatever else the justices believe about the merits of the Colorado decision, Georgia had better be on their minds.

Paul W. Kahn is Robert W. Winner Professor of Law and Humanities at Yale Law School.