Author’s note: The first section is a potential scenario for the end of the 2024 presidential election, based on exchanges with lawmakers and legal experts, as well as a review of scholarly analyses of presidential self-pardon power.
The date is Jan. 20, 2025, Inauguration Day in Washington. But the president-elect is hundreds of miles away — and behind bars.
In this fictional-but-possible reality, Donald Trump, after being found guilty over his mishandling of classified documents and lying to federal officials, has been serving time at a federal penitentiary in Kansas. He carried the state by 15 points, just as he did in 2020. But just before noon, a small media pool is screened and escorted into U.S. Prison Leavenworth, a medium-security facility.
After being allowed by the warden to ditch his orange prisoner jumpsuit, the pool cameras capture Trump in his signature blue suit, white shirt and bright red necktie. At noon Eastern time, inmate Trump approaches a federal judge-to-be-named-later and son Eric Trump holding a family Bible.
Three hours earlier, defeated President Joe Biden and first lady Jill Biden had tearfully said goodbye to White House aides before taking their final journeys on Marine One and then the smaller version of Air Force One for the short hop to their private residence in Wilmington, Del.
A defiant Trump triumphantly takes the oath of office and becomes the 47th president of the United States. He makes his way to a small table nearby with the presidential seal affixed and an aide hands him a document. The new president, the second in history to serve nonsequential terms, signs it, pardoning himself.
Minutes later, flanked by a small army of Secret Service agents and local law enforcement officers, Trump walks out of the prison and boards The Beast. The heavily armored Cadillac limousine and other vehicles in one of the largest presidential motorcades ever seen speeds away. Destination: Kansas City International Airport, about 20 miles away, where the larger and more recognizable version of Air Force One is waiting to ferry him to Joint Base Andrews outside Washington. Marine One then returns him to the South Lawn, where he begins his second term with 37 minutes of “Chopper Talk” with waiting reporters after exiting the executive helicopter before entering the Oval Office for the first time in four years.
So might begin a second Trump term, and even some of his congressional critics, joined by legal experts, say it could happen.
“The simple answer to your question is that the pardon power is virtually unlimited, completely discretionary. So, conceivably, he could pardon himself,” said Democratic Senate Judiciary Committee member Richard Blumenthal, a former Connecticut state attorney general. “There’s an [Office of Legal Counsel] opinion from the Justice Department that says presidents can’t be charged while they are in the White House. Now, if he’s been charged before that, he could issue a pardon.”
Keith Whittington, a political science and constitutional studies professor at Princeton University, said the above scenario is “certainly plausible.”
“There’s no bar to him running and being elected from prison. He could not reasonably serve from prison,” Whittington said, adding that if Trump is sworn in behind bars, “there would almost certainly be litigation over whether the self-pardon is valid, and that legal process would take some time to resolve.”
Any president “can grant legal absolution to anyone, for any federal crime, at any time. … He can use whichever standards he wants, issuing a pardon … for good, bad or no reason at all,” according to Ilya Shapiro, vice president of the CATO Institute and a former attorney at the high-powered Patton Boggs law firm.
“Unlike with appointments and treaties, he doesn’t need the Senate’s advice and consent,” Shapiro added. “And nobody can review him on this: not courts, not Congress, not anyone else. The power is plenary.”
The Constitution states that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of impeachment.” But, as constitutional scholars have noted, that’s all it says on the matter. No court has ever weighed in on the legitimacy of a self-pardon by a chief executive.
Scholars agree that would change almost immediately, should Trump bust another norm by becoming the first POTUS to either end his own prison sentence or grant himself protection from all federal charges.
The above scenario would “eventually require the Supreme Court to weigh in,” Whittington said.
Trump appointed three of the high panel’s six conservative justices — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — but the court has bucked him on several cases related to the 2020 election. Still, the Supreme Court has a track record of upholding the powers of the presidency as spelled out in the Constitution.
“The validity of a self-pardon is genuinely a new question with no obvious answer. Realistically, I’d expect the court to uphold it in a situation like this,” Whittington said.
‘Rallies will get bigger’
One of the most far-fetched notions is that the House would quickly impeach him and the Senate would move swiftly to convict and remove him. But GOP lawmakers this week were quick to sing his song of a corrupt Justice Department hell-bent on sending him down the river.
“I think you have a question across the country where people feel, understandably, that the Department of Justice and the FBI have become extremely political, and that there are two sets of systems of justice, depending on your political party,” said Rep. Mike Lawler, R-N.Y., before echoing Trump in bringing up Hillary Clinton’s dismissed case about her handling of emails while secretary of State: “What people are concerned about … is that when certain people seem to do things, like wipe clean a hard drive that has classified material on it, there’s no charges, but when others do things, there’s charges.”
Although Lawler then told your correspondent that Trump should not have resisted giving the documents back, his adherence to the stock GOP line of flipping all Trump questions on DOJ and Clinton is notable because Lawler is one of 18 House Republicans who won districts that went to Biden in 2020. As he and other Republicans defend Trump without directly defending his actions, therefore giving him political cover, there is another potentially less legally complicated option inmate Trump might employ when the clock strikes noon on Jan. 20, 2025, and he might transform back into President Trump.
He could be “inaugurated and immediately declare himself unable to discharge his duties under the 25th Amendment, Section 3 [of the Constitution], and then his vice president becomes acting president and immediately pardons Trump,” Whittington said. “Having been pardoned, Trump then notifies Congress that he is able to once again resume his duties and the vice president hands him the reins.”
Whom Trump picks as a running mate, should he be the GOP nominee, may matter more than in previous presidential cycles. After all, Trump is pulling away from the other Republican candidates and leads Biden in some polls while running in a virtual dead heat in others.
“His rallies will get bigger, not smaller. And his support will grow, not get weaker,” said Sen. Kevin Cramer, R-N.D. And even though Cramer was quick to note Tuesday during a brief interview that he is supporting North Dakota Gov. Doug Burgum in the primary, he also offered Trump an indirect defense by spending several minutes slamming the DOJ and FBI officials, and Clinton.
Despite a second arraignment in as many months, the Trump 2024 train is thundering down the track. What once would have been a straight-to-streaming movie script about a bombastic president self-pardoning himself inside a federal penitentiary became a real possibility this week.
Editor-at-Large John T. Bennett, a former White House correspondent, writes a weekly column for Roll Call, parts of which first appeared in the subscription-based CQ Senate newsletter. His column will return on Friday, June 30.