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98 S. Cal. L. Rev. Postscript 1 (2024-2025)

handle is hein.journals/pstscrpt98 and id is 1 raw text is: WHEN AN INDICTED CANDIDATE WINS THE PRESIDENCY: WHAT HAPPENS TO THE TRIALS IF DONALD TRUMP WINS THE ELECTION? CLAIRE FINKELSTEIN* & RICHARD PAINTERT ABSTRACT For the first time in U.S. history, one of the two leading candidates for President is a convicted felon and is in the middle of multiple criminal trials on other charges in both state and federal courts. This set of unprecedented circumstances raises a series of urgent legal questions of first impression, particularly in the case in which Donald Trump wins the election. Three questions in particular require urgent examination in the run-up to the 2024 presidential election, and potentially in the immediate post-election period, depending on the outcome. First, with regard to the federal charges prosecuted by the Department of Justice, does the Department's fifty-year- old policy of never indicting a sitting President apply to a previously indicted individual who is elected President after indictment and in the middle of ongoing criminal trials? Second, if the Department of Justice's policy does not block continuing with the prosecution, would the President's usual right of removal apply to allow him to fire Special Prosecutor Jack Smith or otherwise use the President's control of the Department to effectively end the two federal criminal cases against him? And third, with regard to state prosecutions, how protected would each of these state processes be in the face of claims of federal preemption and arguments of executive privilege, immunity, and authority? Could the State of New York proceed to sentence Trump for his felony convictions and potentially imprison him? Could Georgia prosecutors encumber the presidency by insisting on taking their * Algernon Biddle Professor of Law and Professor of Philosophy & Faculty Director of the Center for Ethics and the Rule of Law (CERL), University of Pennsylvania. T S. Walter Richey Professor of Corporate Law, University of Minnesota Law School, Former Associate Counsel to the President and chief White House ethics lawyer for President George W. Bush. 1

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