On Tuesday, Donald Trump, the 45th President of the United States, was indicted for a third time in an extraordinary and unprecedented moment in American democracy. A Washington grand jury voted to prosecute Trump for his alleged attempts to interfere with the transfer of power and incite the Jan. 6, 2021, riot at the U.S. Capitol after losing the 2020 election.
Trump has continually tested the bounds of the nation’s legal, judicial, and political systems. While he became the first sitting or former President to be indicted, the proceedings have set up more unresolved questions to come, including: What happens if Trump wins re-election and is convicted of a felony while in the White House?
There’s no clear answer, say constitutional law experts. This is uncharted territory. No one knows what would happen to this case or the others against him if Trump gets elected in 2024 or what would happen to the criminal charges or trial dates.
“If you have a newly elected President, with indictments and criminal prosecutions still pending or having started, unfortunately, I think you’re guaranteed a constitutional crisis of the highest magnitude, even bigger than Watergate,” says Ken Gormley, President and professor of law at Duquesne University and editor of American Presidents and the Constitution: A Living History. A Supreme Court battle would be likely, Gormley predicts.
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In April, Trump was charged by the Manhattan district attorney’s office with 34 counts of falsifying business records related to an alleged hush-money scheme before the 2016 election. He pleaded not guilty. In June, Trump pleaded not guilty to charges that he mishandled national security documents and lied about it. Jack Smith, a special counsel with the Department of Justice, led that investigation and the Jan. 6 investigation.
There are a few relevant points to consider about whether Trump could be convicted of a felony as President. First, there is nothing in the Constitution that says an indicted person can’t run for President, so Trump’s 2024 campaign can proceed. Second, it’s long been debated whether a sitting President can be charged with a crime—while there’s no definitive answer, it’s been the opinion of the Justice Department since the Watergate era that it can’t be done. But that isn’t legally binding. Trump’s current legal situation is complicated because it involves one state case and two federal ones, and each raises their own set of questions.
“If it was a federal case, in a new Trump Administration, the new Attorney General could easily instruct the Justice Department to just simply not show up and don’t prosecute it further,” says Gormley. “But if it was a state prosecution, in New York or Georgia or elsewhere, that would be far less likely to end. The Justice Department simply has no power to command a state court to cease a prosecution.”
The prosecutors seem to be pushing to have the trial before Election Day: on Tuesday they said they planned to request a Jan. 2024 trial, the New York Times reports, while Trump’s attorney said he would prefer next spring. Some experts say this timing would take the unique circumstances into account: “Most judges—the judge, for example, running the criminal trial—would avoid a timing that leads to that kind of question,” says Aziz Huq, professor of law at the University of Chicago. “So if that was a real risk of both a conviction and let’s say it was jail time, rather than a fine, that would be clear before an election occurs.”
While Trump can continue running for President, whether he could do the job from behind bars if he’s convicted and sentenced to serve time is another matter. That could trigger a different constitutional issue: “Under the 25th Amendment, the Vice President becomes President if the President cannot perform the duties of office,” says Michael Dorf, law professor at Cornell University. “It seems to me that he’d be incapable of performing the duties of office while in prison.”
Dorf points out that there’s an officer removal statute in U.S. judicial code, “which allows a federal officer who is charged with a state crime to have the case removed from state court and tried by state prosecutors in federal court.” According to an American Bar Association publication, the idea is to prevent bias against federal officials from local prosecutors by allowing cases to be heard in a federal forum. This statute would only come into play if Trump was elected President, so Dorf thinks that would be “unlikely” because he expects the case to be resolved before then.
Legal experts say the most likely remedy might end up being a political process rather than a legal one, and some expect another impeachment might be inevitable if Trump is criminally convicted while in office. “I do not believe any judge or any jury or court has the power to remove a sitting President,” says Gormley. “It’s only through impeachment.” (Trump has been impeached twice before, and he was acquitted by the Senate both times.)
The three indictments handed down so far aren’t the only investigations into Donald Trump that could become a problem if he’s re-elected. A district attorney in Georgia is also looking into Trump’s alleged role in the effort to fraudulently alter the results of the 2020 election in the state. “It’s reasonably likely that the Manhattan case, although it’s filling up the oxygen now, is going to be a relatively small part of the legal problems that Trump could face,” Huq says. “What’s at stake in the Georgia case is a direct attack on democracy. It’s an effort to change the outcome of an election unlawfully. That’s not a fair description of what is at stake in the Stormy Daniels case.”
Voters will have the ability to decide whether some of these questions get tested at all, first in the Republican primary and then, if Trump advances, in the 2024 general election. If Trump does become President again while a criminal case against him is ongoing, Gormley notes, you “don’t get a ‘get out of jail free’ card just because you become President.”
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Write to Olivia B. Waxman at firstname.lastname@example.org