WASHINGTON — While power and ego are usually enough to motivate most future presidents, Donald Trump may soon have a much more compelling motive for wanting his old job back: not going to jail.
With a grand jury in Atlanta meeting next month to focus on Trump’s attempted coercion of Georgia officials and federal prosecutors in Washington appearing to be building a conspiracy case around the attempt to block January 6 election certification 2021, Trump may have more reason than ever to seek the protection from lawsuits enjoyed by an incumbent president.
“He sees the office as a shield to protect himself,” said George Conway, an expert on the laws governing presidential exposure to legal challenges. He said seeking the presidency to avoid jail time, albeit brazen for the most part, for Trump would be the logical next step. “It’s a bit like a Ponzi scheme. We must continue, otherwise it will collapse.
Which means that a man who made history by openly soliciting and accepting the help of a foreign adversary to gain power, and then a second time trying to overthrow the American republic to retain that power, could do it again by running for president while under active criminal prosecution.
“No qualification in the Constitution says you have to be unindicted,” said John Ryder, a former Republican National Committee member well-versed in presidential nominating rules and laws.
If Trump won, he would suddenly benefit from rules and precedents designed to let the chief executive focus on the heavy responsibilities of office.
Official Justice Department policy since Richard Nixon’s term ended has been not to pursue investigations of sitting presidents — which could likely mean that federal prosecutors would suspend any pending action against Trump if he resumes his duties. functions.
And while state prosecutors aren’t covered by this federal policy, a recent U.S. Supreme Court case involving Trump seems to suggest that might be the case. During oral argument in May 2020, the judges as well as the New York State Attorney agreed that the presidency is a particularly important office and that any attempt to pursue criminal charges against a sitting president must be aware of these responsibilities.
Norm Eisen, an ethics lawyer in the Obama White House who two years ago worked for the House committee overseeing Trump’s first impeachment, said there’s a huge difference between a president who is under investigation during his tenure and one that is the subject of ongoing prosecution when he takes office. Courts would certainly step in to block delays in any existing cases, he said. Failure to do so would create perverse incentives to seek the White House.
“It cannot be that running for president is an incentive for gangsters and other career criminals,” he said. “That’s not the American legal structure.”
Trump supporters occupy the west front of the Capitol and the inauguration will take place on Wednesday, January 6, 2021. (Photo: Bill Clark via Getty Images)
But Conway, who wrote the Supreme Court’s brief in Paula Jones’ civil lawsuit against Bill Clinton that forced him to take a deposition while president, said that while there’s obviously no no case law specific to Trump’s potential situation, he is confident that the High Court will take seriously the “Article II” powers and duties of the Constitution that are vested in a President.
“If Section II precludes a federal prosecution, I don’t think there’s any question that it would preclude a state prosecution,” he said, adding that those protections would apply even if Trump were to somehow win the 2024 election behind bars. “He could run for office from prison. And if he wins, you have to kick him out.
Silent Constitution on Race During Indictment
In fact, being in jail before Election Day 2024, of course, is unlikely even in the unlikely scenario where Trump is indicted in the immediate future. Defendants who can afford substantial legal fees, even those not as notoriously litigious as Trump, are generally able to drag out the lawsuits for years if they choose.
It is much more likely that Trump was indicted – either by a grand jury in Fulton County, Georgia, on election fraud or similar charges or by a federal grand jury handle the Jan. 6 assault on the Capitol by a pro-Trump mob — and is awaiting trial.
Many of those who plead guilty for their actions that day are required by prosecutors to plead to attempted obstruction of official process, creating a factual record for them to charge others with conspiracy to do the same.
Indeed, in a related civil case, a federal judge in California ruled that Trump and John Eastman, one of Trump’s outside advisers pushing the plan to overturn the election, “dishonestly conspired to obstruct the session.” Joint Congress on January 6, 2021,” and called the scheme “a coup in search of legal theory.”
A state or federal indictment, however, would do nothing to prevent Trump from legally pursuing a presidential race in 2024. No state has the ability to create more restrictive rules for candidate eligibility than those set by the US Constitution, of which there are exactly three: candidates must be at least 35 years old, be citizens born in the United States and have lived in the country for at least 14 years.
“There’s nothing stopping him from running and nothing stopping him from being elected,” Conway said.
And if he were elected while under impeachment, Ryder said, it would take the country into another uncharted territory.
“Then you get into a denser thicket of legal issues,” he said. “Would the trial be adjourned, pending the expiry of his mandate? Could he forgive himself then? In the end, no one really knows.
Conway said he’s not sure Trump can get away with pardoning himself to wipe out all federal charges forever, but he’s almost certain the courts would stay the charges until he doesn’t. no longer in function. “He can’t do his job if he’s chained up or in jail,” Conway said. “The case will be suspended.”
Ryder acknowledged that the RNC could, if it wanted to, create rules to make it harder for those facing criminal charges to win the nomination, but said he doubted the group had any interest in do it. “They’re more likely to pay his legal bills,” he laughs.
Neither Trump staff nor the RNC responded to questions from HuffPost.
Win the White House to avoid prison
Trump has made it clear since his final days in office that he fears prosecution for his actions through Jan. 6 and Jan. 6. the moment of Joe Biden’s inauguration, on one of his golf courses there, until the prime minister of this country announced that he would not be welcome.
More recently, Trump told a rally audience, “They want to put me in jail,” before telling his supporters they should prepare to stage “the biggest protests we’ve ever had” in Atlanta, Washington. and elsewhere.
The approach repeats Trump’s pattern of trying to delegitimize all investigations and investigators examining his activities as corrupt and politically motivated. During his years in office, he called both the special counsel’s investigation into the aid his campaign received from Russia as well as the indictment for his attempt to extort Ukraine “a hoax “, and convinced most Republicans to accept it.
It is not known if this approach can work again. He is no longer the incumbent president, and other Republicans are also seeking the 2024 nomination despite Trump’s attempts to freeze competitors.
Still, it remains to be seen how aggressively the other GOP candidates would be willing to take on Trump. In 2016, Trump’s primary rivals ignored his obvious vulnerabilities on conservative issues and his sketchy business record until it was too late and he had already sewn up the nomination.
So far, only two potential Trump rivals in 2024 have been willing to criticize his behavior through Jan. 6 during their pre-campaign visits: former Vice President Mike Pence and former New Jersey Governor Chris Christie, and only Christie has been consistently vocal about it.
Ryder said that while a “hard core group of Trump supporters” would almost certainly view any criminal indictment against Trump as “politically motivated,” the majority of GOP voters are much more likely to see a candidate impeached as a deeply mistaken choice in a general. election. “Political fallout and legal fallout are two different things,” he said.
A former senior Trump White House official, however, said there was a difference between Jan. 6 as a campaign issue and Trump personally facing a real lawsuit, and that the latter might end up helping him. .
“I don’t think a constant reminder of the events of January 6 is beneficial to him,” said the former official, who remains active in Republican politics, on condition of anonymity. “But a real impeachment, that might end up making him look more like a victim.”
Eisen said he hopes the general election electorate, if Trump gets that far, will send a clear message. “The campaign would become a referendum on his criminality,” he said. “Most Americans would view it with reluctance.”
Trump, despite losing to Biden by 7 million votes nationally and 306-232 in the Electoral College, became the first president in more than two centuries of elections to refuse to hand over power peacefully. His instigation of the Jan. 6 assault on the Capitol — his latest attempt to stay in office — left five people dead, including one police officer, injured 140 other officers, and led to four police suicides.
Nonetheless, Trump remains the dominant figure in the Republican Party and is openly talking about running for president again in 2024.
This article originally appeared on HuffPost and has been updated.