Charlie Foley
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- Mar 11, 2012
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You are basically asking whether the federal government could prevent a state prosecuting an individual (1) because that individual's supporters would respond so violently or (2) because of concerns that Trump would lash out and spill the beans in prison?I'm pretty sure they won't, but I'm also pretty sure that Washington won't let it get that far. He'll be an ex president with a big mouth, able to destroy huge assets and intelligence whenever he opens it. And zero way to control that in state procedings/jails. Additionally his proud boys and the like will be clamouring for nastiness. It'd just be a horrible situation. They'd be better off disappearing him to Diego Garcia or the like than allowing that to happen. There's surely some way to stop states prosecuting due to national security? Maybe @Charlie Foley knows.
I am not aware of such a provision and I can't imagine one existing (but I will research). The first concept would undermine the very concept of a government as it’s basically permitting mob rule: the latter is more interesting but would also basically allow the feds to block any state prosecution of an ex president or someone with similar security info. Also, constitutional red flags all over the place.
Off the top of my head state criminal prosecutions are enjoined where the state statute’s constitutionality is disputed: even then it seems there are (or at least have been) circumstances where being able to appear in court to raise the issue of unconstitutionality of the statue you are charged under is considered “enough” to permit the state case to go ahead.
I will however point you to this memo relating to the watergate affair which does mention that some of what you’ve mentioned could well be a factor in deciding whether to prosecute. Factors against prosecution were the following:
1. His resignation has been sufficient punishment.
2. He has been subject to an impeachment inquiry with resulting articles of impeachment which the House Judiciary Committee unanimously endorsed as to Article I (the Watergate cover-up).
3. Prosecution might aggravate political divisions in the country.
4. As a political matter, the times call for conciliation rather than recrimination.
5. There would be considerable difficulty in achieving a fair trial because of massive pre-trial publicity.
Points 3-5 are the most relevant to Trump’s circumstances/your question.