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Can Trump Go To Jail If Convicted? And Other Indictment Questions

  • NEWS, World
  • 6 min read

Former President Donald Trump’s legal troubles are escalating by the day.

Trump is facing an unprecedented slate of criminal charges that threatens his political future and, if convicted, could land him in prison.

Last week, the former president and front-runner for the 2024 Republican nomination was indicted in Washington on charges of conspiring to overturn his electoral defeat in 2020, adding to existing criminal cases in New York and Florida. A fourth indictment in Georgia could come any day.

No American president has ever been criminally charged before, and no one knows what happens if Trump is found guilty.

The indictments have raised legal and constitutional questions, some of which are easier to answer than others.

Can Trump run for president if he is convicted? Can he go to prison? Can states keep him off the ballot by requiring that candidates have a clean criminal record? What if Trump is convicted but wins the election? Can he take office and then pardon himself?

Can Trump run for president if convicted?

There is near universal agreement on this question: Even if convicted, Trump will face no constitutional barriers to running for the White House.

The U.S. Constitution has only three requirements for presidential candidates: They must be natural-born American citizens, at least 35 years old, and have lived in the country for at least 14 years.

Trump meets all three, and most constitutional scholars agree that states can’t impose additional requirements on presidential hopefuls.

Eugene Mazo, an election law expert and incoming professor at Duquesne University, said that even a candidate with a “mental incapacity” can’t be barred from running “because the Constitution lists all the requirements.”

“If you want an additional requirement, it has to come through a constitutional amendment,” Mazo said in an interview with VOA.

In recent years, legislation by states such as California and New Jersey requiring presidential candidates to disclose their tax returns was struck down as unconstitutional, Mazo said.

That means that states can’t keep Trump off the ballot by passing legislation requiring presidential hopefuls to have a clean criminal record, he added.

The 14th Amendment debate

While states can’t disqualify presidential candidates on new grounds, there is one caveat to this general rule, said Frank Bowman, emeritus professor of law at the University of Missouri.

Under the third clause of the U.S. Constitution’s 14th Amendment, a person found guilty of “rebellion” or “insurrection” can be barred from running for president, Bowman said.

The obscure provision was originally designed to prevent members of the rebel Confederacy from holding office following the 1861-65 U.S. Civil War. The clause remained dormant for more than a century.

But in recent months, liberal groups such as Mi Familia Vota and Free Speech for People have been pressing states to disqualify Trump under the 14th Amendment. They argue that Trump incited an insurrection against the United States on January 6, 2021, when a group of his supporters stormed the U.S. Capitol to prevent Congress from certifying Joe Biden’s victory.

Trump was later impeached for incitement but acquitted by the U.S. Senate. And Bowman noted that none of the current criminal charges against Trump alleges engagement in rebellion or insurrection.

“Whether these efforts will actually work is debatable, not impossible,” Bowman said in an interview.

But others see the effort as a long shot.

“I think that eventually it would get to the Supreme Court and be quickly swatted down.” said Jonathan Turley, a conservative law professor at George Washington University, in a recent interview.

Can Trump go to prison and campaign from behind bars?

If convicted, Trump could be sentenced to prison and, theoretically, he could continue to campaign from there.

“From the perspective of the criminal law, he’s just a guy and, therefore, like any other guy, if he is convicted of a felony, he can be sentenced to prison for whatever term the law provides,” Bowman said.

No former president has ever been incarcerated, but some presidential candidates have campaigned from behind bars.

In 1920, Eugene V. Debs, a presidential candidate for the Socialist Party, received almost 1 million votes while serving a sentence for sedition. In 1992, political activist Lyndon LaRouche campaigned for president while in prison for fraud.

“Can he run a campaign from jail?” Mazo asked rhetorically. “It’s hard, but the answer is, sure.”

Trump himself has vowed to continue campaigning even if he is convicted.

“I’ll never leave,” he said in an interview with Politico in June.

Whether the former president will receive a prison sentence remains uncertain, but Politico recently estimated that he could face up to 641 years if convicted of all charges and given the maximum penalty for each.

This is a far-fetched scenario, however, as judges rarely impose the maximum penalty on first-time offenders and usually allow sentences to run concurrently.

The sentencing decision will ultimately rest with the judge, who will weigh various factors such as the severity of the crime, the defendant’s character, and the public interest.

Some legal experts argue that a judge might spare Trump from prison and instead give him probation or home confinement, if only to avoid the spectacle of a former American president in a prison jumpsuit.

But others say Trump could face prison time if he is convicted.

“I think it’d be very hard for any judge, particularly out of the D.C. district, having sent so many of his supporters and minions to prison for essentially acting on his instigation …not to give him time,” Bowman said.

Could Trump pardon himself?

Since the waning days of the Trump presidency, experts have fiercely argued the question of a presidential self-pardon.

The American president can pardon anyone for federal crimes, and some have speculated that Trump may have secretly pardoned himself before leaving office to avoid future prosecution.

But Turley said he has seen no evidence to that effect.

“If there were (a secret self-pardon), he would have already made that defense,” Turley said in an interview on Tuesday.

On the other hand, if Trump were reelected, he could issue himself a pardon, Turley said. “So if these federal trials are held after the election, Trump could pardon himself before any trial occurs, and Jack Smith will never see a jury in either of these cases.”

Trials in two of the three cases are set for March and May 2024, but those dates could be pushed back by pretrial motions and other legal maneuvers.

And the question of a presidential self-pardon remains far from settled. Legal experts such as Bowman have argued that a presidential self-pardon violates the Constitution. No one can be their own judge.

“Indeed, a presidential self-pardon is antithetical to the language and structure of the Constitution, contrary to the evident intentions of the Founders, and a very real danger to republican government,” Bowman wrote in Just Security in November 2020.

Even if Trump could pardon himself, it would not extend to state crimes with which Trump has been charged, Turley noted.

VOA News