If Trump is in a Georgia Prison and also President, Can He Bring a Successful Habeas Corpus Petition?
by Michael C. Dorf
My latest Verdict column considers the question of what would happen if Donald Trump is tried, convicted, and sentenced to prison before January 20, 2025 but meanwhile secures the Republican nomination for President and either wins the election the conventional way or manages to secure the Presidency through Congressional approval and Supreme Court acquiescence in state legislative re-allocation of electoral votes based on bogus allegations of fraud.
My answer:
(1) If Trump is in prison on conviction of federal crimes he will attempt to pardon himself, and if that fails, he will resign the presidency, his VP will become President and pardon him, the VP will then nominate Trump to be VP, Congress (in GOP control if Trump is President) will approve the selection, at which point the President will resign, Trump will become President again, Trump will nominate the former VP/President as VP again, and Congress will approve that selection too. I call this the "musical chairs" approach to evading a presumed limit on self-pardons.
(2) However, if Trump is in prison on state charges, no Presidential pardon could do him any good, because the President's pardon power only applies to federal offenses. In my view, being in a state prison (more likely in Georgia than in New York) would render Trump “unable to discharge the powers and duties of his office” within the meaning of the 25th Amendment, but because removal on that basis would require the cooperation and initiative of his own VP and Cabinet, he would end up being President while in prison. Crazy, right?
Sure, but now what? If Trump has been duly convicted and sentenced in Georgia, and his appeals were rejected before he became President again, could he argue that state imprisonment of the President is unconstitutional on Supremacy Clause grounds or the like? I think he could argue that, but even if the argument is persuasive, it's not clear to me that he could get past the limits that the courts and Congress have placed on federal habeas corpus relief for state prisoners.
Let's start with the basics. Trump would be arguing that his confinement in state prison is unconstitutional. As the Supreme Court held in Heck v. Humphrey, such a claim can be brought in federal court only as a habeas corpus petition--to which there would be a number of procedural obstacles. The first is a provision enacted as part of the Orwellian-named Antiterrorism and Effective Death Penalty Act (AEDPA), codified at 28 U.S.C. § 2254(d):
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States . . . .
As construed by a SCOTUS majority (on this point) in Terry Williams v. Taylor, the "contrary to" or "unreasonable application of" language means that a habeas petition that makes a legal claim will be rejected unless the state court clearly botched it in light of relevant precedents at the time the petitioner's conviction became final. So if Trump argues to the Georgia (or New York) courts that he can't be sentenced to prison for a period that would include a term as President because state imprisonment of a sitting President is unconstitutional, and if the state courts reject that argument, Trump loses his federal habeas petition too. After all, no court in the U.S., much less the Supreme Court, has ever addressed the constitutionality of state imprisonment of a President because the issue has never arisen. Thus, a decision to reject the novel claim would be insulated from habeas review by AEDPA.
But wait. Trump probably wouldn't argue to the state courts that his imprisonment is unconstitutional at his sentencing because, by hypothesis, that occurs before he becomes President again. Thus, the state courts would have no occasion to rule on his claim. Failure to raise in state court a claim that could be raised is another ground for denial of habeas relief: procedural default. But the default would probably be excused--especially if Trump attempts to raise it in state court and is told his argument is premature.
To make that concrete, let's imagine a timeline:
January 2024: Trump is convicted of various Georgia crimes for his efforts to pressure state officials to overturn the 2020 Presidential election.
February 2024: Trump argues at his sentencing hearing that if he becomes President again, he will have to be released from prison. The court concludes that the argument is premature and sentences him to ten years imprisonment.
May 2024: Georgia Supreme Court rejects all of Trump's appeals.
July 2024: Trump becomes the Republican presidential nominee.
November 2024: Trump loses the election.
December 2024: Crediting bullshit allegations of fraud, various GOP-controlled state legislators send Trump slates of electors to the electoral college.
January 2025: Congress (with both chambers now in Republican hands) accepts the Trump electors and declares Trump the winner of the election. SCOTUS shuts down Democratic efforts to challenge this declaration.
January 20, 2025: Trump is inaugurated from prison in Georgia. He simultaneously files a habeas corpus petition in federal district court in Georgia. The petition is immediately dismissed for failure to exhaust an available claim--his Supremacy Clause argument.
January 21, 2025: Trump files his claim in state court in Georgia, seeking expedited treatment. Within a week, the Georgia Supreme Court rejects Trump's argument. It says that if Trump's service as President is incompatible with the Supremacy Clause, the remedy is political: he should resign or be removed pursuant to the 25th Amendment. (Good one!)
February 2025: Trump goes back to federal district court and files his federal habeas petition again.
Now the trial judge has to apply AEDPA and Trump loses again, because his claim is novel and the Georgia Supreme Court's decision didn't contradict any SCOTUS precedent.
But wait. What if the Georgia courts don't actually rule on Trump's state court petitions at all? Assuming that's not an unexcused procedural default, AEDPA doesn't apply--but Trump still loses, because when AEDPA doesn't apply, the prior SCOTUS doctrine that AEDPA mostly codified does. A line of cases beginning with Teague v. Lane bars habeas relief in reliance on new rules that weren't "dictated by precedent." So once again the novelty of Trump's claim precludes habeas relief.
Accordingly, under existing law, unless Trump can convince a court in the state in which he's imprisoned that his continued imprisonment as President is unconstitutional, he's out of luck. He can't get relief from a federal court.
However, that's under existing law. In the sad universe in which a Republican-controlled Congress has installed Trump as President, Congress will also pass new legislation modifying AEDPA and/or Teague to allow for more forgiving procedural rules in habeas cases. That would be a good thing generally, as the extant habeas law makes it nearly impossible for most prisoners even with meritorious claims to get habeas relief. But I would expect that Congress wouldn't amend the law generally. Congress would do so just for Trump, providing exceptions to AEDPA/Teague for "novel claims by a President" or some other similar carve-out.
Bottom line from this exercise: While the prospect of a second Trump administration rightly terrifies all decent people, like the first Trump administration, it would be an excellent source of constitutional law and federal courts exam questions.