Could Donald Trump End Up in Jail if US Court Tries Him after Office?
If US president, Donald Trump, goes to jail after office, it would not be because a lot of people disagree with him but because he might have broken the law.
Ironically, Trump was the one who said about Hillary Clinton “Lock her up”, criminalising his disagreement with her after their presidential contest in 2017.
For sure, his trial by the Senate is irrelevant because it is mainly political procedure which is unlikely to succeed because it requires a two-thirds vote and therefore needs substantial support among Republican senators.
Even if it succeeds, the punishment would be to remove him from office, which is irrelevant as the trial will be held after he has already left.
The talk of barring him from federal office is also irrelevant as the only office in which he is interested is the Oval one and his chances of running for that in 2024 are now negligible.
So, if Trump does end up in jail, it has to be through the US courts. But, he convention in the US is that former presidents are immune from prosecution, even though the US constitution is supposed to have done away with the British way of doing things.
As it happens, the American convention is a sensible one, precisely because it guards against the criminalisation of politics. It means that disagreements about a president’s policy while in office should not be relitigated in the courts afterwards.
That is partly why Gerald Ford pardoned Richard Nixon, and why the office of the independent counsel decided not to prosecute Bill Clinton after he left office. However, the point about a convention is that it is flexible.
Paul Rosenzweig, a lawyer who advised the Clinton investigation, argued that “a reluctance to prosecute does not mean there should be a prohibition against doing so”, and that “it would be too great an affront to law for a president to have perpetual immunity”.
He quoted Theodore Roosevelt: “No man is above the law and no man is below it: nor do we ask any man’s permission when we ask him to obey it.” Thus Rosenzweig suggested that Trump should be prosecuted if there was evidence that he broke the criminal law as a private citizen, such as in his tangled financial dealings and allegations of sexual assault.
He argued that Trump’s actions as president should still be excluded, but he was writing before the storming of the Capitol, and the president’s role in inciting a rebellion against democracy. If the case against Trump is strong enough for a court of law, this would be an extreme enough case to make another exception to the assumption of post-presidential immunity. No wonder Trump is reported to be considering pardoning himself, and other unconvincing devices to protect himself from prosecution.
Many people watching Trump’s speech to the protesters on 6 January were convinced that he was inciting them to violence, despite his telling the crowd they “will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard”.
But it is striking that two former leader-writers for The Independent disagree about this.
David Aaronovitch, writing in The Times, said the president’s words amounted to: “Wouldn’t it be terrible if something happened to the lying, cheating, treacherous fraudsters who are sitting in that building over there that I’ve asked you to march to?”
Mary Dejevsky wrote in our pages: “It is now taken as read that he ‘incited’ a mob, fomented an ‘insurrection’, conducted, as some say, a ‘self-coup’. I have scoured Trump’s utterances and can find no evidence for any of this.”
It may be, therefore, that the burden of proof required in a court of law, and especially one dominated by conservative judges, assuming that any case would go to the US Supreme Court, would be too great to put Trump’s intentions beyond reasonable doubt.
However, it seems that there are so many ways in which Trump could end up in court, whether it is for alleged incitement, fraud or sexual assault, that at least one prosecution is likely. Remember that is what Paul Rosenzweig thought before Trump’s “Henry II” speech urging supporters to rid him of a turbulent Congress.
Should Trump be found guilty, would the US court be willing to send him to jail?
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