It’s January 20, 2025, and Donald Trump has just been inaugurated as president of the United States.
At the moment he assumes control of the executive branch, Trump may have the dubious and bizarre distinction of being the only president under indictment and, depending on the course of the next 16 months, to be a federal convict – or possibly both.
It’s a mind-boggling scenario that raises a series of bizarre, unexplored, and potentially unresolvable questions about what happens when federal law enforcement is helmed by one of its targets. Legal scholars, attorneys, and historians are grappling with the possibility, with wildly divergent views of the options Trump has to undo his prosecutions and how any attempt he undertakes to bring the cases to an end could play out.
While Trumpworld legal minds are laying the groundwork to bulldoze policies which create a gap between Justice Department decision-making and the Oval Office, this story is not focused on the obvious threat to the rule of law an indicted and/or convicted president would pose. Rather, it explores some mechanisms and tools potentially at his disposal to reverse his convictions and protect himself from further legal peril.
This story will stay focused on the federal cases, leaving out the looming collision between federal power and the Georgia RICO and New York campaign finance cases. Instead, it will focus squarely on what options Trump may have as president to bring the Mar-a-Lago classified documents case and the Jan. 6 case to an end. Other outlandish but practical questions, like how Trump may be able to receive classified information after facing charges for mishandling the same, have unclear answers but aren’t addressed here.
In a second presidency, Trump will have several options for how to end the federal cases against him. They involve somewhat arcane legal mechanisms typically used in cases where new evidence has appeared to discredit a prosecution. In this case, Trump would be set to take all of the victimization and claims of “deep state” persecution and use it as fodder to have a subordinated Justice Department either dismiss the cases or attempt to vacate existing convictions. In so doing, Trump would be eliminating a key guardrail of the rule of law: prosecutorial independence.
“If you don’t respect the rule of law, in essence what you don’t respect is any constraint on your power, for example, trying to overthrow an election after you lost it,” Jonathan Weiler, a professor at UNC-Chapel Hill who studies authoritarianism, told TPM. “So if political actors don’t accept those most basic rules of the game, then the first step is to try to defy those rules, and the second step is the power they then feel they have to wield it however they want, however injurious it might be to their partisan opponents or to the country at large.”
Why Not A Pardon?
It’s perhaps the most obvious, direct, and unreviewable path for Trump: pardoning himself. But Trump has emphasized since he left office in January 2021 that he would prefer not to go that route. At the end of his last term, he declined to preempt any prosecutions of himself or his coterie by issuing blanket pardons for Jan. 6 and the events leading up to it.
NBC asked Trump in September whether he would pardon himself if reelected. Trump stopped short of ruling it out. “I could have pardoned myself when I left,” he replied.
“Let me just tell you. I said, ‘The last thing I’d ever do is give myself a pardon,'” he said, adding that he thought it would look “terrible.”
Optics aside, a pardon might be less than optimal for Trump. It wouldn’t allow him the forum and patina of legitimacy granted by the DOJ in explaining why, in his view, the cases were illegitimate. Using the DOJ to end the cases could be a more straightforward way as well to ensure that they cannot be brought again.
Brandon Sample, a clemency attorney who sought in 2020 to have Trump pardon alleged Silk Road founder Ross Ulbricht, told TPM that if he were in Trump’s position, he would use the DOJ to bring them to an end.
“If he were elected he’d probably instruct that the cases be dismissed with prejudice, and then the attorney general and his minions would go and dismiss the case,” Sample said.
Both Convicted and Inaugurated
Trump’s options as president for undoing the special counsel’s indictments would depend in part on how far along the cases are.
In one scenario, either or both of the two federal cases have resulted in a conviction for Trump by Inauguration Day 2025. Convictions are notoriously difficult to remove at the federal level absent a pardon.
But there is a standard process which Trump’s defense attorneys will likely have employed assuming he’s convicted before inauguration: appeals. Trump could appeal his conviction, which would likely wind its way upwards towards the Supreme Court. During that time, a judge could agree to suspend any sentence he received until the appeal process ended.
The Justice Department, which typically defends the appeals of cases it has brought and successfully prosecuted, would be in a tricky spot with Trump at the helm. Through a compliant attorney general overseeing the Justice Department, Trump could direct attorneys not to contest, or even support, Trump’s appeals.
But if the appeals run out with Trump having lost via that route but, improbably, still being in office while subject to whatever sentence he receives, his defense attorneys could take a more extreme step: filing what’s called a Section 2255 motion, in which they formally ask the judge to remove the conviction and, potentially, hold an evidentiary hearing aimed at determining “actual innocence,” Harry Sandick, a former federal prosecutor now in private practice, told TPM.
Those motions are not frequently granted, Sandick said. Prosecutors typically defend their cases with zeal. But in Trump’s case, a compromised DOJ might decline to do so on order from Trump. Or the Justice Department might go farther and support Trump’s position – an extreme reversal from prosecuting him.
Still, a defense motion to vacate a conviction with support from the Justice Department itself would not automatically remove the conviction. Judges have held fact-finding hearings in Section 2255 proceedings, and would have to rule on whether to accept the motion. That’s a taller order, and one which could lead to months of proceedings examining why and how the DOJ moved to vacate a case that, under the Biden administration, it considered just.
Yet another, similar option would be to file what’s called a writ of coram nobis. It’s typically used in extraordinary cases where new evidence or proof of serious prosecutorial misconduct that was previously unknown to the court emerges after a sentence has been served. Trump’s attorneys could put forward the unlikely argument that new, hitherto unseen evidence compels the court to vacate the case.
Indicted, Inaugurated, But Not Convicted
Let’s say, however, that Trump’s current bids to delay his prosecutions have largely succeeded. That, former prosecutors told TPM, leaves Trump with a much more straightforward option for having the Justice Department end the prosecutions. It’s called a Rule 48 motion to dismiss, typically brought when prosecutors discover new evidence in the course of a prosecution which exonerates a defendant.
In that scenario, federal prosecutors would likely tell the judge that they want to dismiss the case with prejudice. Like the Section 2255 option, it would likely come with an explanation: a way for Trump to put the DOJ’s imprimatur on his claims that the federal cases were the product of a political witch hunt.
But recent history suggests that while Trump would likely win, it might not be so easy.
When the Justice Department under Attorney General Bill Barr tried to dismiss the Michael Flynn prosecution after he entered and then withdrew a guilty plea, U.S. District Judge Emmett Sullivan for the District of Columbia subjected that decision to intense scrutiny and months of hearings. In that case, the appellate process played out for months. The question of whether Judge Sullivan’s conduct was allowed by the law was never resolved.
Trump pardoned Flynn in December 2020.
How Bad Could It Get?
The Justice Department has long prized its independence, its commitment to the public interest, and the need to maintain the public confidence that cases are brought without fear or favor. But having a target of federal law enforcement also running the executive branch could short-circuit prosecutorial independence in ways that are hard to predict but could have enormous consequences for the rule of law. And there’s perhaps less that can be done about it than high school civics classes might suggest.
“If the new administration were to dispense with it entirely, that would be radical but not impossible, because of the way in which it’s worked its way into our system isn’t codified in law,” Rebecca Roiphe, a legal historian at New York Law School who has studied prosecutorial independence, told TPM.
At the Justice Department, a policy barring contacts between the Justice Department and the White House apart from the attorney general and deputy attorney general has long served as a bulwark against political interference. But it’s worth noting that those safeguards were put in place after the free-wheeling Watergate days, when the Justice Department’s independence was deeply compromised. More recently, Trump’s efforts to violate that policy in late 2020 and early 2021, including via acting assistant attorney general for the civil division Jeffrey Clark, highlighted the lengths to which he went to bend federal law enforcement to his will.
Roiphe argued that Trump could bulldoze these practices that are written into DOJ policy but don’t exist in statute. Alternatively, he could appoint an attorney general who already agrees with him. Clark, the DOJ official who, in 2020, broke the no-contacts policy in an effort to help Trump stay in power, has been floated as a potential AG candidate in a second Trump administration, for example. Clark in May wrote an article titled “The U.S. Justice Department is Not Independent” in which he concluded that future administrations should end the White House no contacts policy.
It all raises separate questions, including what impact Trump bringing the Justice Department under his direct control might have on DOJ personnel and broader policies. That kind of reaction in the moment remains unpredictable; senior DOJ officials predicted mass resignations in the event that Trump appointed Clark acting attorney general in January 2021; a Senate-confirmed Clark moving to dismiss cases against Trump after he won a national election might be a different story.
“Would there be a mass departure? Or would it be limited to Jack Smith and his team?” Roiphe asked.