The MCU lied: the future is not inevitable. In the Marvel Cinematic Universe, the Avengers’ Infinity War closed with one survivor knowing one truth: the only acceptable ending was at the end of one narrow path. It was a writing shortcut telling the audience that all upcoming events were inevitable. Later, the franchise doubled down by having Thanos declare himself inevitable.
When we decide a precise future is inevitable, we act like it. We hedge ourselves. We make little lives in little cottages beside little lakes and ignore any ongoing work because what’s the point, right?
But inevitability is for looking back, not ahead. As audience, we want to look back and see that every choice and action led to one inevitable conclusion. Writers aim for inevitability that sets in after the shock of a final twist wears off. Sometimes, writers set up inevitability out loud, like Avengers Infinity War set up Avengers End Game.
What if Dr. Strange hadn’t warned Tony Stark? What might Tony have done during the blip? Maybe nothing. Maybe everything. Would the audience still sit back after End Game and marvel at the inevitability of it all?
Inevitability is for accepting the past not confronting the future.
Accept the Election
When the past is difficult, we humans tend to do one of two things. We bitterly fantasize about how we might change what happened. Or, we view the past as the only way life would have unfolded given the people involved and the circumstances at the time. We echo these paths in two kinds of stories: wish fulfillment (and its impending lessons) or acceptance. Either way, we end up back at inevitability.
Any postmortem of the election will engage in fantasy or acceptance. Does it matter if I accept that the election was inevitable or at least closed to change? Yes, I think so. Because the future is not inevitable. The future is not closed to change.
Confront the Future
When the future looks potentially difficult, we still have our choices and actions ahead of us. We may not be able to change all of our circumstances, but we can still change ourselves.
Where can you begin?
So if you wish the election had gone differently, start changing the future today. Right now in our country, decency and kindness are radical political actions. Be decent and kind to everyone.
Consider how you treat people, how you support democracy and her people, what you can do. Educate and inform yourself. Advocate and champion people and ideas. Consider running for office, even school board or city counsel. Know who is running and support those who support people. Make yourself and your beliefs known to your lawmakers. Make change imperfectly. And then make change better.
Most of us can’t impact the presidency directly. But we can impact most things that matter where we are.
What will happen to Trump’s legal convictions?
Today, November 6, 2024, former President Donald Trump is president-elect until Congress counts the electoral college votes in January. Then Congress will declare Donald Trump president. Donald Trump is also a convicted felon according to the laws of the state of New York.
The overlap of these titles is the reason the American presidency faces potential difficulty. The name “Trump” is used in this post to limit confusion while respectfully acknowledging the man’s various titles and offices.
The overlap also poses a question of first impression, or a legal question arising for the first time.
The short version: Does a state have a right to sentence a president?
The long version: Whether a state has a right to sentence a president-elect or sitting president for criminal felony convictions decided by a jury before the election when the convictions arose from acts other than official acts within a president’s conclusive sphere of constitutional authority during a former presidential term?
A pathway to sentencing
In the NY state case, Judge Merchan adjourned further proceedings until mid-November. Two issues exist in the case: 1) Trump’s motion to set aside the unanimous jury verdict and dismiss the indictment and 2) sentencing if that motion fails. This post does not weigh the motion at all but only suggests a pathway to sentencing if the convictions stand.
If Judge Merchan proceeds with sentencing, it would be helpful if he viewed sentencing through the lens of the immunity decision. Here is one way to do that:
- The court could summarize the actions in testimony that underlie each conviction and when those actions occurred.
- While not a part of the court’s record, you could review the ABC News timeline of the NY state case by Aaron Katersky and Peter Caralambous to get some idea of when certain actions occurred.
- For actions that occurred before Trump’s first presidential term, the court could find whether the actions were official or unofficial.
- For official actions that occurred during Trump’s first term, the court could find whether they occurred within the president’s conclusive sphere of constitutional authority, within the outer perimeter of the president’s official responsibility, or outside of both.
- Applying the immunity decision to these findings, the court could sentence Trump for any conviction when the actions underlying the conviction do not meet the standard for immunity (when they were unofficial, when they occurred before the president’s first term, or when they occurred outside the outer perimeter of the president’s official responsibility).
A few other questions must be answered first
The U.S. Supreme Court’s 2024 presidential immunity decision (immunity decision) must be considered before Trump can be sentenced.
- Were any of the convictions based on Trump’s acts before he took office in 2017? If yes, Trump has no immunity under the immunity decision for those specific convictions.
- If any of the convictions were based on Trump’s acts while president:
- were such acts considered official acts “within a president’s conclusive sphere of constitutional authority”? If yes, Trump has immunity under the immunity decision from those specific convictions.
- were the acts considered official acts “within the outer perimeter of his official responsibility”? If yes, Trump has presumptive immunity under the immunity decision from those specific convictions. The state would have to overcome the presumption of immunity if they wanted to sentence Trump.
- were the acts considered unofficial OR were the acts considered outside “the outer perimeter of his official responsibility”? If yes to either, Trump has no immunity under the immunity decision from those specific convictions.
- Does the state’s legitimate interest in upholding its laws conflict with the nation’s legitimate interest in an unimpeded presidency? If yes, the nation’s interest must prevail over the state’s interest. If yes, Trump’s sentencing or sentence must at least be delayed until after the presidential term ends.
A state’s rights question will go to the Supreme Court
If Judge Merchan sentences Trump on any of the convictions, the state’s rights question arises. Ultimately, the U.S. Supreme Court must decide the question of first impression about state’s rights.
Does sentencing a president conflict with national interests?
Not necessarily. The state’s legitimate interest in upholding its laws can be met through appropriate sentencing for any conviction where Trump lacks immunity. The nation’s legitimate interest in an unimpeded presidency can be met through the existing rules of presidential succession. If the president is unable to discharge the powers and duties of the office, the vice president succeeds to the presidency. (U.S. Constitution, Article II, Section 1, Clause 6, see also Twenty-Fifth Amendment.)
If Trump were sentenced to imprisonment or even house arrest, he could be unable to discharge the powers and duties of the office of the president. Vance would become president, and the presidency would be unimpeded. There is no conflict between the state’s interest in sentencing Trump and the nation’s interest in an unimpeded presidency.
Then is it possible to impede a presidency?
Yes. As one example, if Trump was sentenced to community service, Trump could discharge presidential duites, but his time and devotion would be diminished, thus impeding the presidency.
Wouldn’t Trump pardon himself?
No. The president may pardon people convicted of federal crimes but not people convicted of state crimes. (U.S. Constitution, Article II, Section 2, Clause 1.)
Wouldn’t Trump pressure the New York governor to pardon him?
Unknown but such behavior would surely raise new legal issues.
Could there be a constitutional crisis?
Probably not. If Trump is sentenced and unable to discharge presidential duties, then succession laws avoid a constitutional crisis. If Trump is sentenced but that sentence is suspended or deferred, the constitution offers little support for disqualifying Trump from the presidency.
However, lawmakers may call for a new law or constitutional amendment that specifically disqualifies any future convicted felon from holding the office of the presidency.
What about all the federal charges?
Any actions Trump takes to stop the federal charges raises more Constitutional questions, including:
- Can the charges pass the immunity decision?
- If convicted during his presidency, can Trump pardon himself?
Trump has also promised to fire the special prosecutor, though settled law says he lacks the power to fulfill this promise.
Beyond all these challenges, there may be a path by which the federal charges could survive to be reinitiated after Trump’s second term ends.
What’s your endgame?
You know what’s happened. You know where to begin. You know at least of few of the possible outcomes far outside your control. Now decide where you want to be (where you want the nation to be) and when, whether day by day, at mid-term elections, or in four years.
Maybe don’t assume you’ll get where you want to be by magic, fate, or the hard work of other people. Set your goal. Make your strategy. Start with tactics. Change your world.
No matter what happened yesterday, the future remains to be determined.
Amanda Salisbury Books 
Engage