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The only National League East city left to indict Donald Trump is Philadelphia. District Attorney Fani Willis of Fulton County, Georgia, added Atlanta to New York City, Washington, D.C., and Miami in bringing criminal charges against the former president. But unlike the discrete, narrow charges others brought against Trump, Willis charged the former president (and his associates) with running a vast conspiracy that includes almost every significant act of his campaign between Election Day and the January 6, 2021, attack on the Capitol, and beyond.
But before declaring victory, Trump critics should pause and think about the consequences of state prosecution of former presidents. Instead of catching their white whale, progressives may unleash a spiraling expansion of the criminal justice system that could cripple the presidency and exacerbate our political divisions, not solve them.
Unlike a federal prosecution, a state prosecution is not subject to presidential direction. If Trump were to win the presidency in November 2024, he could order special counsel Jack Smith to drop the federal cases against him for mishandling classified documents and seeking to stop the certification of the election results on January 6, 2021. Article II of the Constitution vests the president alone with the responsibility to "take care that the laws be faithfully executed." That clause gives the president the authority to direct all federal law enforcement actions, even to the point of dropping those against him, his family, and his aides.
But as the Supreme Court first made clear in Printz v. United States (1997), the federal government cannot commandeer the executive officers of the states. The independence of state law enforcement from federal control allows any state prosecutor, following the trail blazed by Manhattan district attorney Alvin Bragg, to file charges against former presidents or even current candidates for the office. Before 2023, our political system had followed a consensus that elected state prosecutors would not pursue former presidents for their misdeeds. State officials declined to bring criminal charges against Bill Clinton. Neither LBJ nor JFK faced investigation for their various shenanigans. Even Richard Nixon rode off into the retirement sunset. Our political and legal leaders understood that presidents faced decisions that were difficult enough without having to worry about prosecution later.
Now that Willis has brought charges against Trump for actions he conducted while in office, presidents will have to factor prosecution into their calculus. And state prosecutors may not even wait until after a president has left office; nothing in the Constitution requires states to wait. This may well make presidents risk-averse, especially when partisan, elected prosecutors are the ones launching the investigations. At the very least, defending against one or more state criminal investigations will draw on the time and resources that a president could—and should—instead devote to carrying out his constitutional responsibilities and protecting national security.
While Democrats may embrace state prosecutors like Bragg and Willis, they should consider the whirlwind they may have unleashed. Nothing will prevent elected Republican district attorneys from opening investigations into Hunter Biden or even President Joe Biden for corruption, bribery, and money laundering—all they need is some link between the Bidens' "criminal enterprise" (to borrow the Georgia description of the Trump campaign) and their jurisdictions. Opening such probes would make for good campaign fodder in deep-red counties; some DAs might even pursue charges just to engage in tit-for-tat retaliation for the NYC and Georgia charges.
State prosecutors also escape federal control because of the limits on the pardon power. Article II of the Constitution gives presidents "Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of Impeachment." Even were Trump or another Republican to win in November 2024, the new president could not pardon Trump for a state crime, especially in Georgia, where the State Board of Pardons and Paroles, not the governor, grants clemency or pardons.
Trump critics might respond that presidents already remain subject to lawsuit because of Clinton v. Jones (1997). There, the Supreme Court's decision allowed Paula Jones to bring a sexual harassment suit against Bill Clinton, who claimed that his pressing duties as president required courts to delay the proceedings until he left office. Willis and Bragg, however, have gone far beyond Jones. They have brought criminal prosecutions under state law in state court, not a federal forum, and they charge Trump for conduct while in office, while Jones involved Clinton's misdeeds from before his presidency. Allowing state prosecutors to sue Trump would render the head of the federal executive branch subject to the political and legal agendas of elected state prosecutors, a marring of our federalist system at odds with the exception to presidential immunity recognized in Jones, which instead protected the separation of powers.
Presidents may be able to win some small solace by asking to remove state criminal cases to federal court, but shifting to a federal forum would not end the prosecutions outright, nor would removal apply to actions presidents allegedly took as private citizens. Trump might not be able to escape Georgia because he did not make all of his efforts to change the Georgia election as a sitting president enforcing federal law; some he allegedly took after he left office.
Americans used to rely on their elected officials to exercise restraint in order to advance the public interest. Prosecutors understood that preserving executive energy and independence justified leaving presidential misdeeds to the political process or even impeachment. They would let the American people decide on the merits of Trump or Biden at the ballot box, not the courtroom. But with prosecutors now mimicking legislators in their willingness to win at any cost, we will have to rely on the courts as the last line of defense for an embattled presidency.
John Yoo is a Professor of Law at the University of California at Berkeley. He is also a Nonresident Senior Fellow at the American Enterprise Institute, and a Visiting Fellow at the Hoover Institution, Stanford University. John Shu is an attorney and legal commentator.
The views expressed in this article are the writer's own.
