Stormy Daniels May Have the Last Word on Donald Trump

Former President Donald Trump speaks during a rally on July 7, 2023, in Council Bluffs, Iowa.

Photo: Charlie Riedel/AP

Only a career criminal finds himself facing four indictments in four different jurisdictions at the same time. That level of legal exposure is generally reserved for those who engage in crime sprees of historic proportions.

Enter Donald Trump, a serial criminal who has been the subject of so many federal and state investigations and indictments that he could put most Mafia bosses to shame. 

It seems likely that Trump, who has already been charged with felonies in two separate cases, will soon be indicted at least twice more, perhaps before the summer is over. If that happens, Trump will have to spend much of the next year traveling up and down the Eastern Seaboard defending himself in courtrooms in New York, Washington, Georgia, and Florida, even as he campaigns for the presidency.

But rather than conflicting with his court appearances, Trump’s presidential run is inextricably linked to his legal strategy: He is clearly running for president again to try to shield himself from a prison sentence. Trump doesn’t see the difference between politics and the law. He appears convinced that his one chance to make his legal troubles disappear is to once again win the country’s top political office.

There is nothing in the law or the Constitution that would stop Trump from running for president, even if he were convicted of one or more crimes by November 2024. But if he is elected and takes office, all kinds of weird and interesting questions will arise. His legal troubles could very quickly lead to an unprecedented constitutional crisis.

Among Republican voters, Trump has been bolstered, not weakened, by his criminal cases; each time he is indicted, his base seems to rally to him. As a result, Trump is now the runaway leader in the race for the Republican presidential nomination. A new Monmouth University poll found that Trump is leading the Republican primary field with 54 percent of the vote, far ahead of Florida Gov. Ron DeSantis, who is in second place with just 22 percent. No other candidate received more than 5 percent. Barring some major change, it seems likely that the United States is headed for a rematch between Trump and President Joe Biden.

But if Trump is reelected in 2024, he will find it difficult to navigate all the obstacles in the judicial system he now faces. If he is sitting in the Oval Office again in January 2025, he will still probably face several legal threats, since experts say it is unlikely that all his cases will be resolved before the election. The biggest threat could, in theory, come from the case that many analysts have downplayed as the weakest: Trump’s indictment in New York state in connection with hush-money payments to former porn star Stormy Daniels.

Yet even the New York case could have unexpected advantages for Trump, and might ultimately cement his status as Teflon Don.

Trump was indicted in the New York case in April; he was indicted again in June in federal court in Florida on charges that he took more than 100 classified documents when he left the White House and arranged to hide them at his Palm Beach home and club Mar-a-Lago — including in a shower — when the government asked for them back. Prosecutors issued a new indictment in the classified documents case Thursday, adding charges against Trump that include allegations that he and an aide tried to obstruct investigators by deleting security tape footage at Mar-a-Lago. He is also likely to be indicted soon in Georgia state court and in federal court in Washington in connection with his efforts to overturn the 2020 election results; the federal case also involves his role in the January 6 insurrection.

But if he becomes president again, there are a number of highly controversial gambits Trump could try to use to wriggle out of at least some of his mounting legal problems. If he is reelected and the federal criminal cases against him are still making their way through the courts when he takes office, Trump could order the Justice Department to drop them. If he refused to do so, Jack Smith, the special counsel hired last year by Attorney General Merrick Garland, could be fired by a new Trump-appointed attorney general.

If, by contrast, Trump is convicted in either federal case and is subsequently elected president, he could try to pardon himself once he takes office. But there is an unresolved debate among legal scholars about whether that is possible under the Constitution. Just before President Richard Nixon resigned in 1974 rather than face impeachment in the Watergate scandal, the Justice Department’s Office of Legal Counsel issued an opinion saying that a president could not pardon himself. But Trump could still test that legal guideline. The issue would almost certainly end up before the Supreme Court, where a conservative majority could hold sway.

“The weight of authority goes against the idea that a president could pardon himself,” said Caroline Mala Corbin, an expert on constitutional law at the University of Miami School of Law. “But the constitutional text does not directly answer the question, so it is possible to come up with a theory that allows it.”

Yet another legal mine field for Trump lies in the 14th Amendment to the Constitution, which bars from federal office anyone who has engaged in an insurrection against the United States. Section 3 of the 14th Amendment prohibits anyone who once swore to support the U.S. Constitution and later “engaged in insurrection or rebellion against the same” or gave “aid or comfort to the enemies thereof” from holding any federal office, including the presidency. If Trump were convicted on federal charges of seditious conspiracy — the same charges on which the leaders of the Proud Boys and Oath Keepers have been convicted in connection with the January 6 insurrection — that could lead to an interesting debate over whether he would still be qualified to serve as president.

Trump’s legal peril could also be eased if another Republican is elected president, and either forces the Justice Department to drop its prosecutions of Trump or pardons him.

Of course, any aggressive, unprecedented moves to protect Trump would have a huge political impact, and their success would depend heavily on the makeup of Congress. If the House and Senate are both controlled by Democrats, it is unlikely that Trump could get away with these tactics. But Republican control of Congress would likely allow him to protect himself.

The New York and Georgia cases are different, however. Trump’s status as president won’t allow him to get rid of his criminal cases in state courts. 

“There are a lot of questions about whether Trump could pardon himself,” said Corbin, “but it is not disputed that the power of the presidential pardon only extends to federal crimes.” 

In Georgia, Trump may be able to rely on friendly Republican officeholders to get him out of trouble. Georgia is one of only three states in the nation where the governor does not have the power to issue pardons; instead, the state has a five-member board in charge of pardons and paroles. However, all the board members are appointed by the governor, and all five current members have been appointed by Republicans. If Trump is convicted in Georgia, Terry E. Barnard, the former Republican state legislator who is the longtime chair of the Georgia Board of Pardons and Paroles, may suddenly become a household name.

“I expect [Trump] will be indicted,” said Darryl Cohen, an Atlanta lawyer who previously worked as an assistant district attorney in the Fulton County, Georgia, district attorney’s office that is expected to bring charges against Trump. “If he is convicted, he could go to the pardon board, and they could pardon him. But this is so unique and unusual, that I think [Fulton County District Attorney Fani Willis] is on to something that is way more than she expected.”

In fact, the Republican political establishment in Georgia has already begun to move against Willis, a Democrat. In May, Gov. Brian Kemp, a Republican, signed legislation that creates a state oversight commission with the power to remove locally elected district attorneys from their positions. The law seemed to be aimed straight at Willis, just as she was preparing to charge Trump. 

But if Trump is convicted in the hush-money case, he would have to rely on Democratic New York Gov. Kathy Hochul for a pardon. She is unlikely to help him avoid prison.

The potential threat that a New York conviction holds for Trump no doubt explains why he has been trying to move the hush-money case to federal court; a federal judge on July 19 denied that attempt.

To be sure, Trump’s legal cases have a long way to go before pardons would be considered. He and his attorneys are certain to file motions seeking to delay all the cases, hoping that none go to trial before the 2024 election. It’s possible that he won’t be convicted in any of them, and even if he is, he could file endless appeals and might never be sentenced to prison. Michael Bachner, a New York lawyer and a former assistant district attorney in the Manhattan DA’s office that brought the hush-money case against Trump, noted that the ex-president has been charged with the lowest-grade felony in New York state.

“It is extremely unlikely that a judge would send him [to prison] in this case,” said Bachner. “Most first-time offenders [on this type of charge] would not go” to prison.

That raises yet another possible way Trump could avoid incarceration: He might claim that he’s a first-time offender — in four different jurisdictions.