Could a convicted Donald Trump be sentenced to jail time and still run the country? America might find out soon.
On Tuesday, the former commander-in-chief and current Republican candidate for President told Fox News host Tucker Carlson that he planned to continue campaigning for the White House even if he’s eventually convicted of one of the several crimes he currently stands accused of.
“I’d never drop out,” Trump said when asked about a potential conviction. “It’s not my thing.”
There is nothing in the United States Constitution barring a person indicted or convicted of a felony from serving in the role, save for inciting insurrection or rebellion against the United States. Socialist candidate Eugene Debs once ran for president from jail and still earned just over 3 percent of the vote in the 1920 presidential election.
All of this begs the question: What if Trump—convicted of a felony and facing jail time—actually wins in 2024?
First, it would have to be established whether Trump is actually going to go to jail and whether his sentence would begin in time for it to matter.
While the courts themselves have a lot of discretion about sentencing and how to implement sentences, Trump has a litany of legal options still to be exhausted, including appeals processes that could continue well into and even after his administration has ended.
Trump could also attempt to pardon himself, an untested legal theory some scholars believe still has some potential to be tested against the conservative majority he helped build in the U.S. Supreme Court.
Even if that fails, there is a way around a decision that doesn’t go his way, Cornell Law professor Michael Dorf wrote for Justia.com’s “Verdict” blog on Wednesday. Trump could simply run with a like-minded vice presidential candidate and, with a supportive Congress, find an easy workaround that could allow him to leave office, receive a pardon and then return to the White House as if nothing happened.
“Trump could resign, leaving the office of the presidency vacant. His Vice President—let’s call her Marjorie—would then become President,” wrote Dorf, perhaps referring to Georgia Representative Marjorie Taylor Greene, who is a staunch Trump supporter.
“Marjorie would then pardon Trump and also name him as her Vice President, which Congress would confirm. At that point, Marjorie would resign the presidency, Trump would again become President, he would nominate Marjorie as his Vice President, and Congress would confirm that choice.”
That scenario is a challenge to imagine, however. Republicans would need to regain control of the U.S. Senate during the 2024 election cycle with a polarizing presidential candidate who has lost two consecutive popular votes at the top of the ballot. And though there are theoretical workarounds for some of Trump’s potential charges—including potential crimes from the U.S. Department of Justice for illegally withholding classified documents from his time at the White House—pardon power only extends to federal crimes.
Trump’s current efforts to fight active charges of falsifying business records in a New York-based hush money case are currently being heard in state court, for example, while there is also the unsettled matter of his alleged effort to interfere in the state of Georgia’s elections during his failed 2020 re-election bid, leaving two sets of crimes that could be decided in state court and out of the reach of a presidential pardon.
Even if he is sentenced, there are also questions regarding the national intelligence and security community that could come into play, which experts told Newsweek would likely view incarceration in its most traditional sense as incompatible with the level of security the presidency demands.
“Prisons are supposed to respect attorney-client privilege by facilitating genuinely confidential meetings,” Dorf told Newsweek in an email. “They don’t uniformly do so, but one could imagine adopting a protocol for national security information. Even so, all sorts of practical issues would arise, including making secure communications available and somehow putting a [Sensitive Compartmented Information Facility] in a prison.”
If Trump wins, Tulane law professor Steven Griffin told Newsweek, prosecutors’ options to address those concerns would likely be limited.
They could build him his own prison facility, for one. They could delay his sentence until after his time in the White House had concluded. Or it could simply confine him to de facto “house arrest,” disallowing him from leaving the White House grounds while he served out his term.
“If I actually try to think through how you would do business as a president from a jail cell, it’s almost impossible to imagine,” Griffin said. “And not because of some kind of inherent impossibility.
“But the president is surrounded by an envelope not just of Secret Service, but of legally mandated national security considerations that dictate how he’s receiving confidential information. And so to preserve the security that the intelligence community would literally have to build a secure prison, which is pointless.”