A president governing from behind bars?
Watching the torrent of invective and megalomania pouring from Donald Trump on Tuesday after his arraignment for a second time, what struck me was not so much the falsehoods as the desperation.
“I am the only one that can save this nation,” Trump declared. He spoke of “the most evil and heinous abuse of power in the history of our country” — meaning his own “persecution.” He denounced the special counsel, Jack Smith, as “deranged.”
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Trump’s delirium didn’t seem to energize either him or the crowd, however, and this classic con man has seemed to shrink under prosecutorial scrutiny. It was difficult to avoid thinking of other leaders I’ve covered over the decades when they were scrambling to avoid prison; under investigation, they deflated before our eyes. Now the net is tightening around Trump.
An absurd question keeps nagging at me: Could an inmate in a federal prison get a leave to attend his own presidential inauguration?
I wonder about that because Trump seems to be moving simultaneously in two opposing and irreconcilable directions. First, it seems increasingly plausible that he will become the first former president to be convicted of a felony. Second, he also seems increasingly likely to win the Republican nomination for president, with the betting markets also giving him about a 22% chance of going on and actually being elected president.
Any defendant must be presumed innocent until proven guilty. But some smart lawyers believe that for Trump, the “peril is extreme,” as one former federal prosecutor put it. Trump’s own attorney general William Barr said, “If even half of it is true, then he’s toast.”
Trump could, of course, catch a break. The evidence from his own lawyer could be declared inadmissible in trial, or maybe the trial judge will allow stalling tactics by the defense, or maybe a die-hard sympathizer on the Florida jury will refuse to convict. But Trump could eventually be indicted in four separate criminal cases, and with so many cases swirling about, the odds increase that he may find himself convicted of at least some felonies.
He would be a first offender, and it’s not certain that he would do prison time. Officials so far have been very deferential toward Trump: He hasn’t been handcuffed or subjected to a mug shot.
Still, deference may end upon conviction, and defendants in less serious cases have ended up with substantial prison sentences. Just this month, a former Air Force officer was sentenced to three years in prison for keeping classified documents — and he had pleaded guilty and thus presumably received leniency. And during Trump’s presidency, Reality Winner leaked a single document and was sentenced to more than five years in prison.
Even if Trump were convicted and imprisoned, he could continue to run for office and even presumably hold the office of president, if he weren’t too busy in the prison factory making license plates. Eugene Debs, the socialist candidate, famously ran for president from federal prison in 1920, receiving almost 1 million votes.
I guess accommodations could be made so that prison officials didn’t listen in on phone conversations between federal inmate No. 62953-804 and Chinese and Russian leaders. Perhaps summit meetings could be held in a larger cell? State banquets in the prison dining hall?
One low-level precedent: Joel Caston, while serving a sentence for murder, was elected in 2021 to be an advisory neighborhood commissioner in Washington, D.C. But that’s an unpaid two-year advisory position, a bit different from the presidency.
If Trump were both incarcerated and elected president, perhaps his Cabinet could invoke the 25th Amendment and declare him unable to serve. But Trump presumably would carefully choose Cabinet members who would never do that. Alternatively, maybe if elected, would he try to pardon himself?
Is it conceivable that voters would actually choose as president a man who had been convicted of felonies, or was about to be? It seems hard to believe, but I also thought Trump was unelectable in 2016. It’s notable that as the legal cases against Trump have gained ground this year he has also risen in Republican polling.
A plausible guess, based in part on the latest polling since the federal indictment, is that prosecutions could help him in the Republican primaries while hurting him in the general election. Looking ahead, news organizations must not drop the ball as they did in 2016, giving Trump a platform without adequately fact-checking him. We should enable democracy, not empower an anti-democratic demagogue.
