Thread by @EricColumbus

Let’s be clear: the legal process itself is very unlikely to stop Trump from becoming President again. Only the voters—or Trump himself—can do that. 🧵1/

For starters, there’s no guarantee that Trump would be convicted of anything before January 20, 2025. The wheels of justice turn slowly! 2/

And if he hasn't been convicted, courts would almost certainly grant a motion to suspend all pending prosecutions for the duration of his presidency. 3/

Courts will agree with DOJ's Office of Legal Counsel (which opined on this during the Nixon and Clinton presidencies) that you can't prosecute the president because it interferes with his job. (The whole opinion is worth reading.) 4/
justice.gov/d9/olc/opinion…

And, of course, to the extent the pending prosecution is federal, President Trump would simply order DOJ to drop the case. But he couldn't do that regarding the state prosecutions in New York and (coming soon) Georgia. 5/

But let's imagine that Trump *is* convicted and imprisoned before Election Day. As most folks know by now, you can still run for President from behind bars. 6/

In 1920, socialist Eugene Debs won 3.4% of the national presidential vote while living in the Atlanta Federal Penitentiary! (His best state was Wisconsin where he snagged 11.5%.) 7/
uselectionatlas.org/RESULTS/nation…

(Debs fared better in 1912, winning 6% as a free man, which coincidentally was the last time a former president was on the ballot.) 8/
uselectionatlas.org/RESULTS/nation…

My favorite prison candidate story is that a guy named Keith Judd, serving a 17-year sentence for extortion, somehow won 41% in the West Virginia Democratic primary against President Obama, simply because many WV voters didn't like Obama. 9/
npr.org/sections/thetw…

But how well could Trump govern from prison? Might not that convince Congress to, say, impeach and remove him and let his VP take over? No matter—courts are extremely likely to grant a petition by Trump for a writ of habeas corpus to spring him from prison. 10/

A writ of habeas corpus is a court order granting a convicted prisoner's petition for his release. Habeas law is very complicated, and I'm no expert, but I'm pretty confident that he would win in this unprecedented circumstance. 11/

Trump would argue that he is "in custody in violation of the Constitution, " 28 USC 2241(c)(3), because the myriad duties the Constitution assigns to the President cannot be fulfilled competently from prison. 12/
law.cornell.edu/uscode/text/28…

Courts *might* say "Tough luck, you should've thought about that before criming/campaigning." But I think it's much more likely courts (SCOTUS) would bow to the will of the voters and set him free (but he'd need to return to prison after leaving office, barring clemency). 13/

Could Trump simply pardon himself? He couldn't do that for a state prosecution, i.e. in New York or Georgia. It's not clear a self-pardon is valid under *any* circumstance, yet it's also not clear who would have standing to challenge it. 14/

What if Trump gets convicted for violating 18 USC 2071(b)—which was mentioned in the Mar-a-Lago search warrant and which states anyone convicted of violating it is "disqualified from holding any office under the United States"? Very unlikely to work. 15/
law.cornell.edu/uscode/text/18…

The Constitution sets forth qualifications for the presidency, and courts are highly likely to hold that Congress can't add further requirements. For further reading, follow the links here. 16/
reason.com/volokh/2022/08…

One more possibility: the 14th Amendment bars from certain offices persons who "engaged in insurrection or rebellion against [the U.S.], or given aid or comfort to the enemies thereof." And 18 USC 2383, titled "Rebellion or insurrection against the U.S.," is very similar. 17/

If Trump is indicted and convicted of violating 18 USC 2383 in connection with January 6, could he be barred from office pursuant to the 14th Amendment? Probably not. 18/

As a threshold matter, it's not clear that the relevant language in the 14th Amendment includes the presidency or Trump. Is the presidency an "office . . . under the United States"? Did Trump swear an oath "as an officer of the United States"? Unclear. 19/

Furthermore, the language of Section 2383 and the 14th Amendment is very similar but not identical. A conviction might mean that jurors felt that he "incite[d]" an insurrection, but that's probably not good enough for the 14th Amendment bar. 20/

For much, much more on Section 2383 and the 14th Amendment, read @JoshMBlackman and @SethBTillman. (I have no view on whether they're right.) 21/
reason.com/volokh/2021/02…
papers.ssrn.com/sol3/papers.cf…

The point here is that there are many problems with this theory (as with the others) and courts are likelier to take one of many available offramps rather than rule that the candidate elected by the American people is ineligible to take office. 22/

Finally, as @Delavegalaw pointed out to me, it's theoretically possible that as judge might impose, as a condition of probation, a prohibition on running for office. The Fifth Circuit has actually upheld such a sentence for a former congressman. 23/
casetext.com/case/united-st…

But even if Trump were to be sentenced before Election Day, it strikes me as highly unlikely that a judge would impose such a condition, or that it would be upheld, given that it would throw the 2024 election into chaos. 24/

For more on this possibility, as well as the possibility that Trump might voluntarily withdraw as part of a plea deal, see this @NinoMonea article (h/t @alegalnerd) which I have yet to read. 25/
papers.ssrn.com/sol3/papers.cf…

I bet I'm forgetting something, but that's all for now. Bottom line is that the courts are very unlikely to keep Trump from winning the presidency. It's up to us. 26/

To paraphrase the Zen proverb:
Before Trump indictment: chop wood, carry water. After Trump indictment: chop wood, carry water.
27/

Or in the words of Barack Obama: we are the ones we have been waiting for.
28/end