The President and the Rule of Law: When the Defendant Returns to Power

By Cliff Potts, CSO, and Editor-in-Chief of WPS News

Baybay City, Leyte, Philippines — September 8, 2026

Donald J. Trump is the president of the United States.

Donald J. Trump is also a convicted felon.

Those statements are simultaneously true.

On May 30, 2024, a New York jury found Trump guilty on 34 felony counts of falsifying business records in the first degree. The prosecution alleged that business records were falsified as part of an effort to conceal a payment made shortly before the 2016 presidential election (New York State Unified Court System, 2024a, 2024b).

Trump has consistently denied wrongdoing, denounced the prosecution as politically motivated, and pursued appellate challenges to the conviction. His conviction therefore should not be described as beyond legal challenge. As of this writing, however, the jury verdict has not been overturned, and Trump remains convicted while pursuing his appeal (Reuters, 2026a).

That unprecedented situation raises an uncomfortable question for the United States.

The Constitution does not prohibit a convicted felon from serving as president.

But what happens to the rule of law when the person constitutionally charged with executing federal law has himself been criminally convicted—and when the presidency increasingly provides protections unavailable to ordinary citizens?

The answer is more complicated than simply declaring Trump’s conviction grounds for impeachment.

It is also considerably more important.

Thirty-Four Felony Convictions

Trump was indicted in New York in 2023 on 34 counts of falsifying business records in the first degree under New York Penal Law § 175.10 (New York State Unified Court System, 2024c).

His trial began April 15, 2024.

After nearly seven weeks of proceedings, the jury began deliberations on May 29. On May 30, it returned guilty verdicts on all 34 counts (New York State Unified Court System, 2024b).

That wording matters.

Trump was not merely charged 34 times.

He was not simply accused by prosecutors.

A jury returned 34 guilty verdicts.

Those verdicts remain subject to appeal, as criminal convictions ordinarily are. Trump is entitled to challenge them through the appellate process, and an appellate court could ultimately reverse some or all of the convictions.

But unless and until that happens, describing Trump as a convicted felon is a statement of his current legal status, not political rhetoric (New York State Unified Court System, 2024b; Reuters, 2026a).

What Trump Was Actually Convicted Of

Precision is particularly important here because Trump’s New York case is routinely described inaccurately by both supporters and opponents.

Trump was convicted of falsifying business records in the first degree.

The charges arose from records associated with reimbursements to Michael Cohen, Trump’s former attorney, following Cohen’s $130,000 payment to adult-film actress Stormy Daniels shortly before the 2016 election. Prosecutors argued that the records concealed an unlawful scheme intended to influence the election by suppressing potentially damaging information (New York State Unified Court System, 2024a).

Trump denied Daniels’ account of a sexual encounter and denied criminal wrongdoing.

The criminal issue was not whether having an extramarital sexual encounter is illegal.

It is not.

Nor was Trump convicted merely for paying someone to remain silent. Such agreements are not inherently criminal.

The prosecution concerned the manner in which business records were allegedly falsified and the purpose prosecutors said that falsification served.

That distinction is essential if this series is going to assess Trump’s conduct rather than caricature it.

The Sentence Was an Unconditional Discharge

Trump was sentenced on January 10, 2025, shortly before returning to the presidency.

The court imposed an unconditional discharge.

Under New York law, an unconditional discharge releases the defendant without conditions imposed upon that release (New York State Unified Court System, n.d.).

Trump therefore received no jail sentence and no probation.

That did not erase the verdict.

Judge Juan Merchan had previously explained the unusual constitutional problem confronting the court. Trump had been convicted, but he was preparing to assume the presidency. Merchan concluded that an unconditional discharge provided a means of bringing the criminal proceeding to judgment while avoiding interference with Trump’s forthcoming presidential responsibilities and preserving Trump’s ability to pursue an appeal (New York State Supreme Court, 2025).

The result was extraordinary.

The criminal justice system produced a felony conviction against a former president.

The electorate subsequently returned that defendant to the presidency.

And the sentencing court deliberately fashioned a punishment that would not interfere with the operation of the presidency.

None of those actions was necessarily unlawful.

Together, however, they illustrate the collision between presidential power and ordinary legal accountability.

A Criminal Conviction Is Not Automatically an Impeachable Offense

This point cannot be avoided simply because it complicates the argument for impeachment.

Trump’s New York convictions do not automatically constitute grounds for removing him from his present office.

The underlying conduct largely predates his first presidency. The jury verdict occurred after that presidency. The Constitution does not expressly declare that a president who has been convicted of a felony becomes ineligible to serve.

Impeachment is principally concerned with serious abuses associated with public office and public trust, rather than functioning as an automatic additional punishment for every crime an officeholder might commit (Congressional Research Service [CRS], 2025).

That means Congress should be extremely cautious about constructing a third impeachment article that simply says:

Trump is a convicted felon; therefore Trump must be removed.

That argument is constitutionally weaker than many of Trump’s opponents may wish it were.

The New York conviction matters enormously.

But it matters primarily because it creates a larger constitutional problem concerning the relationship between the presidency and the law.

Then the Supreme Court Changed the Landscape

On July 1, 2024, the Supreme Court decided Trump v. United States, one of the most consequential presidential-power cases in American history.

The Court held that a former president possesses absolute immunity from criminal prosecution for actions within the president’s “conclusive and preclusive” constitutional authority, at least presumptive immunity for official presidential acts, and no immunity for unofficial acts (Trump v. United States, 2024).

The decision did not declare presidents completely immune from criminal law.

That distinction is critical.

Unofficial conduct remains prosecutable.

But the decision established substantial criminal immunity surrounding official presidential actions and required courts to determine whether challenged conduct falls within protected presidential functions (Trump v. United States, 2024).

The majority reasoned that a president must be able to exercise constitutional authority without the threat that political opponents will later criminally prosecute legitimate presidential decisions. Without meaningful immunity, the Court reasoned, fear of prosecution could distort presidential decision-making (Trump v. United States, 2024).

That concern is not frivolous.

Imagine a system in which every departing president expects an incoming administration to prosecute controversial official decisions made by the previous administration.

Presidential government could quickly degenerate into cycles of political prosecution.

The majority attempted to prevent precisely that danger.

But the decision created another danger.

How Much Immunity Is Too Much?

Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, dissented.

The dissent warned that the majority had substantially altered the relationship between the presidency and criminal law and had created protection broad enough to place dangerous presidential misconduct beyond ordinary prosecution (Trump v. United States, 2024, Sotomayor, J., dissenting).

The disagreement between the majority and dissent exposes the central constitutional dilemma.

A president needs independence.

A president cannot function if every difficult decision carries a credible threat of personal prosecution from political enemies.

But a president also cannot become a monarch.

The American system was constructed around the proposition that governmental power is limited and that public officials remain subject to law.

The challenge is determining where necessary presidential independence ends and effective legal impunity begins.

That question is no longer academic.

Trump is serving a second term under an immunity doctrine created by litigation arising from his own previous presidency.

The Presidency Is Not Supposed to Be a Sanctuary From Law

The Constitution gives presidents extraordinary authority.

It does not explicitly create a general presidential exemption from law.

The president must “take Care that the Laws be faithfully executed” (U.S. Const. art. II, § 3).

That language becomes particularly important when the president himself has a complicated relationship with the legal system.

A criminal conviction does not make every subsequent presidential decision illegitimate.

Nor does it establish that Trump is incapable of faithfully executing the laws.

But the combination of criminal conviction, presidential immunity, control over the executive branch, broad pardon authority, and authority over the Justice Department creates a structural problem unlike anything the United States has previously confronted.

The question becomes not simply whether Trump personally believes himself above the law.

The more important question is whether American institutions are constructing a presidency that functionally is.

The Justice Department Problem

The president appoints the attorney general and exercises enormous influence over the executive branch responsible for enforcing federal criminal law.

That authority is constitutionally legitimate.

But it becomes dangerous if law enforcement is transformed from an institution serving the United States into an institution serving the president personally.

Recent litigation illustrates why the distinction matters.

In August 2026, the U.S. Court of Appeals for the Second Circuit upheld a ruling preventing Justice Department subpoenas directed at the office of New York Attorney General Letitia James because the prosecutor leading the investigation had been unlawfully installed in his position. James had previously brought the civil fraud case against Trump and his business and has argued that federal investigations involving her represent political retaliation. The Justice Department disputes that characterization and intends to seek Supreme Court review (Reuters, 2026b).

That ruling does not prove that Trump personally ordered an unlawful prosecution of James.

Nor does it prove that James committed no wrongdoing.

But it raises exactly the institutional question Congress must investigate:

Is federal prosecutorial authority being exercised according to neutral legal standards, or is governmental power being directed against people who previously investigated or prosecuted the president?

That distinction could become central to an impeachment inquiry.

The Rule of Law Requires More Than Courts

Americans often speak about the “rule of law” as though it simply means courts exist.

It means considerably more.

The rule of law requires that governmental power operate according to established legal rules rather than the personal wishes of whoever holds power.

It requires that political allies and political enemies be treated under the same legal standards.

It requires presidents to obey adverse judgments.

It requires prosecutors to exercise governmental authority for legitimate law-enforcement purposes.

And it requires that presidential power itself remain bounded by law.

Courts are one mechanism for maintaining those boundaries.

Congress is another.

That is where impeachment becomes relevant.

If presidential immunity makes certain official conduct difficult or impossible to prosecute criminally, impeachment becomes more important, not less important, as a constitutional accountability mechanism.

The Supreme Court itself recognized that its decision concerned criminal prosecution. It did not abolish impeachment (Trump v. United States, 2024).

The Constitution therefore still provides a political remedy for abuses of presidential authority even where criminal prosecution may be unavailable.

This Is Where a Third Impeachment Case Becomes Stronger

Trump’s 34 New York convictions alone provide a questionable foundation for a third impeachment because the underlying conduct predates his current presidency.

But suppose evidence establishes that, while president, Trump uses federal authority to punish prosecutors who previously investigated him.

Suppose executive agencies are directed toward personal retaliation.

Suppose presidential authority is used to obstruct lawful investigations.

Suppose officials are selected specifically to accomplish actions that other officials refuse to undertake because they believe those actions unlawful.

Suppose court orders are deliberately evaded.

Those would be different constitutional questions.

They would concern present presidential conduct.

And if sufficiently serious and sufficiently supported by evidence, they could fall squarely within the historical understanding of abuse of power and violation of public trust underlying “high Crimes and Misdemeanors” (CRS, 2025).

That is why Trump’s legal history belongs in this series.

Not because being convicted automatically makes him impeachable.

Because his second presidency is testing whether the enormous powers of the presidency can be used to insulate the president himself from meaningful accountability.

The Cost of No Accountability

There is an easy mistake to make when discussing the rule of law.

It is to ask whether Donald Trump will go to prison.

That is not the most important question.

The more important question is whether the United States is developing two systems of accountability—one for ordinary citizens and another for presidents.

Trump was tried by a jury and convicted on 34 felony counts (New York State Unified Court System, 2024b).

He was elected president afterward.

The sentencing court imposed an unconditional discharge partly because of the extraordinary constitutional circumstances surrounding his return to office (New York State Supreme Court, 2025).

Meanwhile, the Supreme Court has established absolute immunity for a president’s exercise of core constitutional powers and presumptive immunity for other official acts (Trump v. United States, 2024).

Each individual development has a legal rationale.

The cumulative effect deserves considerably more attention.

Presidential immunity protects the office.

The pardon power protects executive discretion.

Prosecutorial discretion protects law enforcement.

Executive privilege protects presidential deliberation.

The separation of powers protects presidential independence.

Every one of those doctrines serves legitimate constitutional purposes.

But protections can accumulate.

At some point the question becomes whether the system has protected the presidency so thoroughly that it has become extraordinarily difficult to hold the president accountable when presidential power itself is abused.

That is where Congress enters the equation.

Impeachment was designed precisely because the Framers understood that ordinary criminal law would not always be sufficient to protect the republic from misconduct by powerful public officials (CRS, 2025).

If Congress refuses to use that power regardless of the evidence before it, the constitutional consequences extend far beyond Trump.

Every future president inherits the authority successfully claimed by previous presidents.

Every future president studies the boundaries previous presidents crossed without consequence.

And every future president learns something from what the other branches tolerated.

The ultimate danger is therefore not that Donald Trump possesses too much power.

It is that the office of the presidency itself may emerge from this era possessing power that no individual in a constitutional republic should possess without effective restraint.

Trump’s criminal conviction forces America to confront the question.

His presidency makes answering it unavoidable.

References

Congressional Research Service. (2025). Impeachment and the Constitution (R46013). U.S. Congress.

New York State Supreme Court. (2025). People of the State of New York v. Donald J. Trump, Ind. No. 71543-23. New York County.

New York State Unified Court System. (n.d.). Common sentences.

New York State Unified Court System. (2024a). People v. Trump, 2024 NY Slip Op 24148.

New York State Unified Court System. (2024b). People v. Trump, 2024 NY Slip Op 24328.

New York State Unified Court System. (2024c). People v. Trump, 2024 NY Slip Op 50464(U).

Reuters. (2026a, April 21). Trump defense lawyers depart law firm Sullivan & Cromwell for Gibson Dunn.

Reuters. (2026b, August 21). Appeals court upholds block on U.S. Justice Department subpoenas to New York attorney general’s office.

Trump v. United States, 603 U.S. 593 (2024).

U.S. Constitution, art. II, § 3.