6 Scenarios to Expect if Trump Gets Elected (and Imprisoned)

A post-inauguration self-pardon

At the same time, a newly inaugurated Trump might dispense with the complications of the 25th Amendment and instead just issue a pardon to himself for his federal crimes.

This would be quite a risky strategy, from a legal point of view. There are very good reasons for thinking that a self-pardon wouldn’t be constitutionally valid.

The director of the Federal Bureau of Prisons might presumably be persuaded to take the president’s word for the validity of his self-pardon and oversee his release.

Most likely, he would need a pliant attorney general and an Office of Legal Counsel in place to provide legal cover, which would also necessitate waiting until such officers could be further appointed.

The validity of self-pardon would most likely be litigated. Without a doubt, Trump would be able to wait out the litigation from the White House rather than from jail. But with such a new and harsh constitutional question, it is not certain exactly how the courts would fix such a case.

Ultimately, the question would have to be fixed by the Supreme Court. If Trump issued a self-pardon during his term of office, it seems completely plausible that the justices might have ruled it out of bounds.

As a matter of fact, Trump would back the Court into a rather difficult corner, especially if he launched his second term of office with a self-pardon.

In such a case, the justices would then understand that declaring the pardon invalid would further create an immediate constitutional crisis over whether the president would voluntarily return to prison or not.

Given these high stakes, a majority of the justices could be willing to let aside their own doubts and uphold Trump’s self-pardon.