That’s the new headline the Post is currently using for my column published this morning. I like this headline because I do think the main focus, at least for election law purposes, should be on the issue of Trump’s status under section 3 of the Fourteenth Amendment and the procedures for adjudicating that status. So much of the public discussion of the criminal indictments of Trump has been based on an assumption that, if convicted, he somehow would be eliminated from the election–which is not true (only if the voters choose to make those criminal convictions relevant to their electoral choices).

Even the public discussion of the new Georgia indictment seems somewhat missing the key point (in my judgment) in this regard. True, Trump can’t pardon himself if convicted in Georgia. But I don’t think that completely answers (or perhaps even answers at all) the question of his capacity to serve as president if reelected. If Trump wins in November 2024, even assuming he’s been convicted in Georgia, Article II and the Supremacy Clause presumably would require that serving any sentence yield to the imperatives of his exercising the duties of the presidency. To be sure, he might have to serve out the remainder of his sentence starting on January 20, 2029, since the conflict between his sentence and his responsibility as commander-in-chief would be over. But for anyone concerned about the idea of a second Trump term starting on January 20, 2025, I don’t think a criminal conviction on the Georgia charges is any constitutional barrier to that. Instead, the criminal conviction would need to yield as necessary to the imperatives of Trump’s inauguration.

Thus, I would urge a rebalancing (to some degree) of media and public attention away from the criminal indictments and towards the issue of Trump’s status under section 3 of the Fourteenth Amendment and the ancillary procedural issues associated with adjudicating whether or not he is constitutionally disqualified to serve again as president. Hence, my appreciation for the new title of the column.