Noah Coco '26
Staff Editor
Students and faculty gathered on Wednesday, September 27, for the first session of a series on the federal and state indictments against former President Donald Trump, sponsored by the Karsh Center for Law and Democracy. The first session, titled “The Indictments: A Primer,” focused on reviewing the indictments at a high level and addressing basic questions regarding possible constitutional problems that could arise.
The discussion was led by Professors Thomas Frampton and Saikrishna Prakash. Together, they combined their expertise in criminal law and the presidency to provide context to students regarding the upcoming litigation.
Professor Prakash kicked off the event by discussing constitutional issues that may arise in the course of litigation. Many open questions remain about how this unprecedented criminal litigation against a former president, and possible future sitting president, will proceed. The Constitution provides some hints, but not many concrete answers. Unlike the specifically enumerated privileges for members of Congress – speech and debate privileges, for instance – the presidency does not actually have privileges against arrest or prosecution. The only guidance on this issue comes in the form of a memo produced by the Office of Legal Counsel (OLC) in 2000. OLC concluded that a sitting president cannot be prosecuted, or even indicted, in either state or federal court because it would interfere with the president’s ability to serve. This remains Department of Justice policy, although there has been no occasion to challenge it since its publication.
Prakash maintains that the conclusion of OLC is incorrect. He believes that criminal indictments and prosecutions fall within Twenty-fifth Amendment’s categories of incapacities that would make a president unable to adequately serve in his duties. And while the record of criminal indictments against sitting presidents is sparse, he does note one, albeit comical, instance when President Ulysses S. Grant was arrested for speeding while riding in a horse-drawn carriage through the streets of Washington, D.C.
While only speculating about how a criminal prosecution might proceed in the event that Donald Trump is reelected to the presidency before the resolution of the impending litigation, Prakash was much more confident in asserting that there are no constitutional concerns that preclude prosecuting a presidential candidate, even one with the status of former President of the United States.
Prakash concluded by discussing possible defenses Trump may have against the indictments, namely that his conduct was performed in his official capacity as president, and an assertion of executive privilege. It is perhaps unsurprising that former President Nixon provides the closest hint as to whether these defenses will be successful. In cases stemming from the Watergate scandal, courts have held that a president or former president cannot be sued for damages resulting from official acts. Prakash believes, however, that this logic should not extend to criminal charges. Instead, he argues, this question should be addressed by Congress. On the question of executive privilege, too, courts may decide to override Trump’s defense.
Professor Frampton, armed with printed copies of all of the indictments, followed Prakash with a discussion of their contents. Trump faces four separate criminal cases composed of over ninety felony charges. In the time allotted for him to speak that afternoon, Frampton remarked, he had approximately five seconds per felony count.
The first case was brought in New York and primarily concerns allegations of falsifying Trump Organization business records. Wrapped into the facts of this case is the entertaining, yet disgraceful, saga of payments made to pornstar Stormy Daniels. Former Trump lawyer, Michael Cohen (who has already pleaded guilty to violations of the Federal Election Campaign Act) was reimbursed for “legal services” for the payment he made to Daniels. Frampton noted, however, that this case will hinge on whether the prosecution can prove that Trump acted with an intent to defraud, a necessary element for these felony charges.
Trump faces additional federal indictments in the Southern District of Florida in the “Documents Case” for unlawfully retaining documents related to national security, as well as in Washington, D.C. for his actions in the January 6 events that contributed to the disruption of Congressional proceedings and obstruction of the government’s lawful function of certifying election results.
The final case against Trump is the truly sprawling Georgia Racketeer Influenced and Corrupt Organizations (RICO) indictment. The basis of this state RICO indictment is the "idea that there was one, big, criminal conspiracy to subvert the results of the Georgia election,” as Frampton summarized it. The indictment articulates over one hundred overt acts that the prosecution alleges constitutes the conspiracy.
Frampton was cautious not to make any predictions as to the success of any of these indictments, particularly in light of Prakash’s discussion of the uncertainty concerning constitutional restraints and possible defenses at Trump’s disposal.
Two future sessions in this series have been scheduled in the coming weeks. The first, “The Trump Indictments: The Presidential Election and Congress,” will be led by Professors Payvand Ahdout and Bertrall Ross on Wednesday, October 4 at 11:45 a.m. in WB 101. The second session is “The Politics of Presidential Indictments” and will be led by Professors Cynthia Nicoletti and Frederick Shauer on Tuesday, October 17, at 4 p.m. in WB 101.
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