What happens if Donald Trump faces trial as sitting president of the US?

A legal expert forecasts that Trump will ‘do his best to slow-walk’ the process under way against him

Weekend 1 Trump

At about 9pm on Tuesday, Joe Biden and his immediate predecessor as US president, Donald Trump, were speaking in different parts of the United States.

Fox News, the country’s most popular cable news channel, showed a split screen to its viewers. This is common practice in broadcasting when big events are going on at the same time. But it was the text that Fox ran beneath the images that generated controversy.

The chyron, as it is known technically, said: “Wannabee dictator speaks at White House after having his political rival arrested”.

Fox, unlike its rival CNN, had been carrying in full Trump’s speech to donors and supporters at his golf club in Bedminster, New Jersey. It was just hours after he had left a court in Miami, where he faced 37 counts in relation to his handling of highly classified documents. If convicted, he could face a maximum sentence running into hundreds of years. The indictment maintained that Trump could have jeopardised US national security.


However, with its chyron, Fox News essentially endorsed the former president’s main argument that he is an innocent man being persecuted for political reasons.

Trump is the front-runner to be the Republican Party’s candidate to run for the White House in 2024.

A poll this week suggested 81 per cent of self-identified Republicans believed the case against Trump was politically motivated

He has argued consistently that the Biden administration, by pursuing him over the classified documents stored at his home and club, Mar-a-Lago in Florida, is seeking to interfere in the election by undermining his campaign.

This is a view that is now accepted by a significant number of Republican Party supporters. An Ipsos/Reuters poll this week suggested 81 per cent of self-identified Republicans believed the case against Trump was politically motivated.

Outside the court in Miami on Tuesday it was almost an article of faith that Trump was being persecuted by his political opponents, who could put him in jail – potentially for the rest of his life – if convicted.

By that night Fox was projecting this view to the entire country.

Cameras were not allowed into the room on the 13th floor of the Wilkie D Ferguson federal courthouse in downtown Miami to see Trump become the first former president to be arraigned in a criminal case brought by the federal government. There was only a sketch artist to record the moment for history.

Trump had been fingerprinted but did not have the traditional mug shot taken before he appeared before the magistrate judge.

Those present reported that the former president sat back in his chair for much of the hearing with his arms folded, the muscles in his back visibly tensing under his navy suit jacket. On occasions he leant forward with his elbows on the desk.

A few metres across the room, in the second row of the visitors’ gallery, sat Jack Smith, the special counsel who led the investigation that resulted in Trump being charged.

Smith was appointed by US attorney general Merrick Garland to investigate two sets of allegations against Trump; his involvement in trying to overturn the results of the 2020 election and his handling of classified documents.

Trump by that stage had announced he was running again for the presidency. The appointment of a special counsel was aimed at having the investigation conducted at arm’s length from the justice department – to minimise allegations of political bias.

Smith’s investigation had circled around Trump for months, interviewing those in his orbit. However, last Tuesday afternoon in a courtroom in Miami was the first time their paths had crossed directly.

The proceedings came to a head shortly after 3pm, when the judge asked how Trump would be pleading. “We most certainly enter a plea of not guilty,” his lawyer replied.

Within about 50 minutes the process was over. The former president left by a side door set into the court’s wood panelling, casting a glance over his shoulder to the media present. Smith walked to the other side of the room. He did not look back.

Downstairs in the plaza in the front of the court complex, the crowds had been building. In the morning the waiting media easily outnumbered those who either came to support Trump or to call for him to the jailed.

In part it looked more like performance art than a political protest. One man walked around with a pig’s head on a pole. Another was dressed up in a prisoner’s striped outfit and carried a sign saying “Lock him up”. Ironically he would be the only person detained by police after he tried to lunge at Trump’s car.

Some of the Trump supporters had come long distances. The Irish Times spoke to Gregg Donovan, who had travelled from Los Angeles, and to Jay Paul, who had come from Texas to give their backing to the former president.

There had been fears of potential violence. However, while there was a lot of noise, it was by no means threatening.

The most raucous arguments seemed to be between Republicans supporting Trump for the presidency and those backing Florida governor Ron DeSantis.

Trump had stayed on Monday night at his golf hotel near Miami and was escorted by police motorcade to the courthouse just after lunch. By that time the crowd had grown to probably a couple of thousand. Local authorities in Miami had earlier said they were prepared for crowds of up to 50,000 on the streets. In the event there were nowhere near those numbers.

Many of the Trump backers were Hispanic. Some had come originally from countries where regimes jail their political opponents. Some carried placards with photos of Biden alongside those of Fidel Castro, Venezuelan leader Nicolás Maduro and Daniel Ortega of Nicaragua to make their point.

In the plaza beneath the courtroom on the 13th floor, the supporters of the former president wore their red MAGA hats and waved their blue Trump flags. Some had T-shirts with his likeness above the slogan: “I’ll be back.”

They chanted: “We love Trump” and “We want Trump”.

Close to 4pm a motorcade emerged from an underground garage. From inside a black vehicle the former president waved and gave thumbs up to those on the pavement.

But Trump did not go directly to the airport. Rather he stopped off at a restaurant in the Little Havana district of the city, where he was greeted by flag-waving supporters. He spent 15 minutes shaking hands.

Back in February 2021, shortly after the riots at the Capitol in Washington, leader of the Republicans in the Senate Mitch McConnell had argued against convicting Trump following his impeachment by the House of Representatives.

“We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.”

If even half of it is true, then he’s toast. It’s a very detailed indictment and it’s very damning

—  Trump’s former attorney general Bill Barr

With Trump now facing criminal charges brought by the federal government, McConnell has remained silent. But most Republican politicians have rallied around the former president and front-runner to be their party’s nominee in 2024.

Some condemned the indictment before they even read its terms.

“It is unconscionable for a president to indict the leading candidate opposing him. I, and every American who believes in the rule of law, stand with president Trump against this grave injustice,” House speaker Kevin McCarthy said.

The allegations in the indictment that Trump stored some of the county’s most secret documents – about its nuclear programme, its vulnerability to attack and its plans for retaliation – in cardboard boxes in a ballroom or a storage room in his Mar-a-Lago estate in Florida did raise concern for some.

“If even half of it is true, then he’s toast. It’s a very detailed indictment and it’s very damning,” Trump’s former attorney general Bill Barr said.

However, many of his supporters have sought to play “whataboutery”. What about the classified documents that Biden had in his home in Delaware? What about Hillary Clinton’s private email server?

At a press conference in front of the court on Tuesday another Republican candidate for president, Vivek Ramaswamy, pledged, if elected, to pardon Trump immediately. He urged everyone else in the contest to do likewise.

In his speech in Bedminster on Tuesday evening, Trump lashed out, calling the indictment “the most evil and heinous abuse of power in the history of our country”.

He promised if re-elected to appoint “a real special prosecutor to go after the most corrupt president in the history of the United States, Joe Biden”.

He described Smith as a “raging and uncontrolled Trump hater” who he alleged “does political hit jobs”.

He raised the issue of Hillary Clinton’s private email server. He also claimed she had taken furniture and china from the White House and alleged that Bill Clinton had “lost the nuclear codes” when he was president.

In the speech he also tried to answer the question as to why he had held on to the classified material. “I hadn’t had the chance to go through all the boxes,” he said. “It’s a long, tedious job. I have a busy life.”

So where does it all go now?

The trial of Donald Trump will take place in southern Florida, which has a population that may be more favourable to him than would have been the case in Washington.

The case has been assigned to US district court judge Aileen Cannon, who he appointed to the bench. She attracted strong criticism from some over rulings last year they deemed to be excessively deferential to Trump and that were reversed on appeal. She will adjudicate over jury selection and procedural motions before the trial gets under way.

Smith last week called for a speedy trial.

Claire Finkelstein, professor of law at the University of Pennsylvania, forecasts that Trump will “do his best to slow-walk” the process.

“I do not think the trial will be speedy,” she says. “I think it is very good that Jack Smith said that. That is the legal standard. But I think Trump will do everything to interfere with a speedy trial and I think any judge – and especially Aileen Cannon – will bend over backwards to give the appearance of fairness to Donald Trump. The evidence against him is very strong … and one does not want to have the perception among his supporters that he was not treated fairly at trial.

“That means every little thing will get litigated that Trump wants to litigate. And I expect it will take a very long time.”

The Department of Justice has three memos saying a sitting president cannot be indicted. There is no existing memo talking about a previously indicted president who is scheduled to go to trial who has become president

—  Claire Finkelstein, professor of law at the University of Pennsylvania

She says things may also be delayed because of other indictments. Trump is already facing a criminal trial in New York next March arising from the alleged hush money payments to an adult film star. Another indictment could follow soon in Georgia.

But what will happen to the classified documents case if Trump becomes president again?

“Now we are in terra incognita,” says Finkelstein. “The Department of Justice has three memos saying a sitting president cannot be indicted. There is no existing memo talking about a previously indicted president who is scheduled to go to trial who has become president.”

She argues there are no constitutional reasons why a sitting president cannot be indicted, although there are some practical reasons why it would be problematic.

“There is even less reason why a previously indicted individual who becomes president could not be tried on a prior indictment.”

So could he just tell the Department of Justice to stand down?

“The trouble [is] our system does not have anything against it. Also he could pardon himself. Our system does not have anything against that [either].

“But it would be a profound example of obstruction of justice.”