What is the supremacy clause: the legal loophole that could keep Trump out of jail (2024)

WASHINGTON − Supreme Court Justice Samuel Alito a few years ago described what he called a farcical scenario.

What if a sitting president is criminally charged by New York, he postulated. Could he be sent to Rikers Island or face restrictions on his travel? Would he have to put his presidential responsibilities aside to sit in a courtroom? Could aides approach him during the trial to whisper in his ear about pressing matters? Could the court recess if he needed to talk to a foreign leader?

And if the president were convicted, Alito concluded, could he be imprisoned?

That was the untenable situation that might result if the Supreme Court didn’t put enough restraints on the ability of state and local prosecutors to go after presidents, Alito wrote in his disagreement with how the majority of his colleagues decided in 2020 that a New York prosecutor could seek then-President Donald Trump’s tax records.

The records request was an early step in the investigation that led last month to Trump’s conviction on 34 felony counts of falsifying business records for which he will be sentenced next month.

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That New York case and the election interference charges Trump faces in Georgia pose a different obstacle to the presumptive GOP nominee than the two federal indictments he’s fighting.

If Trump becomes president again, he can’t order the Justice Department to dismiss the Georgia charges and can’t try to pardon himself for the New York conviction.

But he can make the case Alito did that Georgia shouldn’t be able to interfere with his running of the country through a trial and New York can’t lock him up or restrict his travel if he receives a lesser sentence like probation.

That argument is based on the section of the Constitution that makes the federal government “the supreme Law of the Land.”

“I believe that under the supremacy clause and his duties as president of the United States, this trial could not take place at all until after he left his term of office,” Steven Sadow, Trump’s attorney, told the Georgia judge overseeing the election interference case in December.

Alito's nightmare?

That exchange came long before the case got bogged down over whether Fulton County District Attorney Fani Willis should be disqualified, making it probable a trial cannot take place before the presidential election.

Now it’s even more certain that, should Trump win, he’ll be reaching for the supremacy clause as a lifeline.

What is the supremacy clause: the legal loophole that could keep Trump out of jail (1)

As with many things involving the first American president to be criminally convicted, the nation is in unchartered territory.

There are no court precedents that address his situation. Whether he could serve his New York sentence and be tried in Georgia next year −should Trump return to the White House − could end up being decided by the Supreme Court, which is still weighing whether he can be tried on federal election interference charges.

Trump would have a legitimate argument, said Alex Reinert, a criminal law expert at the Benjamin N. Cardozo School of Law in New York City.

“It's a combination of the supremacy clause and, I suppose, a constitutional common sense − if there's any such thing as common sense in this situation where we're talking about a president who's elected even though he's been convicted of crimes having to do with a prior election,” Reinert said of the New York case.

In the Georgia case, Judge Scott McAfee said in December the question about whether Trump could be tried if he became president again “might be worth considering” during the pre-trial proceedings.

“I think obviously that’s something we’re going to be taking up in greater detail in the new year,” he said.

The Supreme Court considered the relevancy of the supremacy clause in 2020 when Trump tried to prevent Manhattan District Attorney Cyrus Vance Jr. from getting his tax records.

The majority ruled that the clause does not give a president absolute immunity from state criminal subpoenas or even require prosecutors to clear a higher hurdle of need for the information.

A “properly tailored criminal subpoena will not normally hamper the performance of the President’s constitutional duties,” Chief Justice John Roberts wrote.

Aziz Huq, a University of Chicago law professor, said that ruling suggests a president could have to respond to requests for information or sit for depositions without running afoul of the supremacy clause. But it didn’t address the question of whether a full-blown trial requiring the attendance of a president is allowed.

“That’s an issue on which a lawyer could make good faith arguments,” he said.

In fact, to rebut Alito’s concern that the majority’s decision on subpoenas would enable states to “run roughshod” over the functioning of the executive branch, Roberts wrote: “The Supremacy Clause prohibits state judges and prosecutors from interfering with a President’s official duties.”

Is the Paula Jones lawsuit against Bill Clinton relevant?

The high court also tackled the issue of unacceptable burdens on the president when deciding in 1997 that a sexual harassment lawsuit brought by Paula Jones against President Bill Clinton did not have to be put on hold until Clinton left office.

While acknowledging the unique responsibilities of the presidency, the court nonetheless unanimously said there were ways of accommodating the president’s arduous schedule.

“We recognize that a President, like any other official or private citizen, may become distracted or preoccupied by pending litigation,” Justice John Paul Stevens wrote. “Presidents and other officials face a variety of demands on their time, however, some private, some political, and some as a result of official duty.”

But in Trump’s case, the court is likely to draw a distinction between the criminal charges he faces and Clinton’s situation, said Peter Shane, an expert on presidential powers at New York University School of Law.

“The court’s attitude, rightly or wrongly, was that being a party to a civil suit was just not as burdensome on the president’s time or attention as criminal action would be,” Shane said.

In addition, Clinton’s case involved different constitutional issues because the suit had been filed in federal court. Had it been state-level litigation, the Supreme Court noted, Clinton likely would have brought up the supremacy clause – which raises different concerns that the court did not address.

Even if Trump does not receive a prison sentence for his New York conviction, the terms of his probation could include travel restrictions that Trump could argue would hinder his presidential responsibilities.

“If he's sentenced to imprisonment or some other restraint on his liberty, there's obviously an interest in him serving that sentence,” Reinert said. “But I think there’s a good argument that the New York state’s interest in having him serve that sentence should fall by the wayside when you’re talking about it interfering with his duties as commander-in-chief.”

Shane reached back to a 19th Century case that might be used to bolster Trump’s argument.

A U.S. Marshal was charged in California with murdering a man while protecting a Supreme Court justice who was hearing cases in the state. The high court in 1890 said the marshal was immune from state prosecution because he was fulfilling his duties as a federal law officer.

“The case kind of stands for the general principle that state law can’t operate to defeat the effective operation of the federal government,” Shane said. “That’s the kind of argument that Trump would make.”

What is the supremacy clause: the legal loophole that could keep Trump out of jail (2024)


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