States *Can* Prosecute and Incarcerate Sitting Presidents
Towards a new theory of federalism.
States have the power to arrest, prosecute, and incarcerate sitting Presidents of the United States. The science is settled and the experts have reached a consensus: if Donald Trump is re-elected President in 2024 the states of Georgia and New York could still throw him in jail. Since the President can only pardon himself for federal crimes then even if Trump becomes President he would have to surrender himself to these states and go to jail if convicted.
Lawgic trap, bigots.
This, at least, is the argument put forth by Clark Cunningham, the W. Lee Burge Chair of Law and Ethics, at the Georgia State college of law. (Please clap).
Cunningham maintains that Trump is in “big, big trouble if he’s convicted in Georgia” because, as the author of this piece maintains:
Unlike the two federal indictments brought against Trump by the Justice Department, the criminal charges filed by Fulton County District Attorney Fani Willis are part of a state prosecution, which is not subject to the authority of the federal government. The same applies to the hush money case brought against Trump earlier this year in New York.
Trump would not be able to pardon himself in the state cases if he’s reelected to the White House in 2024.
If a sitting President is convicted in a state trial then he needs to be immediatley impeached and removed from office, according to Cunningham:
But the way the system ought to work is, if he’s convicted in Georgia, the House of Representatives would put forth articles of impeachment based on that conviction. The Senate would approve those articles of impeachment, and Trump would be removed from office through the constitutional process of impeachment.
It is incredible that no one in American history until 5 minutes ago understood that a state court trumps sitting presidents. Imagine if the South had known this in 1861. South Carolina could have simply charged Abraham Lincoln with committing 119 felonies such as “Being a White Nationalist Nazi Fascist” (Lincoln once said the n-word in a public speech) and then Congress would have had no choice but to impeach Lincoln and remove him from office. Wow!
Cunningham’s theory of federalism is a remarkable innovation and one that conservatives should take advantage of.
If a sitting President can be removed from office by a state court, there is nothing stopping Texas, Wyoming, or West Virginia from charging Joe Biden with multiple felonies relating to his business deals with Hunter overseas. As the Douglass Mackey case pointed out—if a fiber optic cable runs through a state and someone commits illegal acts over that fiber optic cable—then the state in question has legal jurisdiction over the case. Quod erat demonstrandum.
Clark Cunningham Esq. has provided the Right with a powerful new legal weapon to use against the Democrats (and other federal officials). For instance, a state court could convict a cabinet level official and that official would have no choice to surrender to the state to serve his sentence. And unlike with the President there is no question about a need for impeachment!
So, if Texas wants to put Alejandro Mayorkas in prison, there’s nothing stopping them. States rights! Federalism!
This is the thinking we need. As Saul Alinsky said "Make the enemy live up to its own book of rules."
Except ...Supremacy Clause.