Analysis: Could Trump ever be jailed? Your questions, answered

Analysis: Could Trump ever be jailed? Your questions, answered

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Could he still run for president? Why would the adult-film star case move before any of the ones about protecting democracy? How could you possibly find an impartial jury?

What’s below are answers to some of the questions we’ve been getting – versions of these were emailed in by subscribers of the What Matters newsletter – about the indictment of former President Donald Trump.

He’s involved in four different criminal investigations by three different levels of government – the Manhattan district attorney; the Fulton County, Georgia, district attorney; and the Department of Justice.

These questions are mostly concerned with Manhattan DA Alvin Bragg’s indictment of Trump over a hush-money payment scheme, but many could apply to each investigation.

The most-asked question is also the easiest to answer.

Can Trump still run for president while indicted or if he is convicted?

Yes, absolutely.

“Nothing stops Trump from running while indicted, or even convicted,” the University of California, Los Angeles law professor Richard Hasen told me in an email.

The Constitution requires only three things of candidates. They must be:

  • A natural born citizen.
  • At least 35 years old.
  • A resident of the US for at least 14 years.

As a political matter, it’s maybe more difficult for an indicted candidate, who could become a convicted criminal, to win votes. Trials don’t let candidates put their best foot forward. But it is not forbidden for them to run or be elected.

Other restrictions don’t apply to Trump

There are a few asterisks both in the Constitution and the 14th and 22nd Amendments, none of which currently apply to Trump in the cases thought to be closest to formal indictment.

Term limits. The 22nd Amendment forbids anyone who has twice been president (meaning twice been elected or served half of someone else’s term and then won his or her own) from running again. That doesn’t apply to Trump since he lost the 2020 election.

Impeachment. If a person is impeached by the House and convicted by the Senate of high crimes and misdemeanors, he or she is removed from office and disqualified from serving again. Trump, although twice impeached by the House during his presidency, was also twice acquitted by the Senate.

Disqualification. The 14th Amendment includes a “disqualification clause,” written specifically with an eye toward former Confederate soldiers.

It reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

The indictment in New York City with regard to the hush-money payment to an adult-film star has nothing to do with rebellion or insurrection. Nor do potential federal charges with regard to classified documents.

Potential charges in Fulton County, Georgia, with regard to 2020 election meddling or at the federal level with regard to the January 6, 2021, insurrection could perhaps be construed by some as a form of insurrection. But that is an open question that would have to work its way through the courts. The 2024 election is fast approaching.

Could Trump vote if he was convicted?

If he was convicted of a felony in New York, Trump would be barred from voting in his adoptive home state of Florida, at least until he had served out a potential sentence.

Why this case and not the more consequential ones?

First off, there’s no suggestion of any coordination between the Manhattan DA, the Department of Justice and the Fulton County DA.

These are all separate investigations on separate issues moving at their own pace.

The payment to the adult-film actress Stormy Daniels occurred years ago in 2016. Trump has argued the statute of limitations has run out. Lawyers could argue the clock stopped when Trump left New York to become president in 2017.

It’s also not clear how exactly a state crime (falsifying business records) can be paired with a federal election crime to create a state felony. There are some very deep legal dives into this, like this one from Just Security. We will have to see what, if anything, Bragg adds. The charges in the indictment are not yet publicly known, a source told CNN.

Of the four known criminal investigations into Trump, falsifying business records with regard to the hush-money payment to an adult-film actress seems like the smallest of potatoes, especially since federal prosecutors decided not to charge him when he left office.

His finances, subject of a long-running investigation, seem like a bigger deal. But the Manhattan DA decided not to criminally charge Trump with regard to tax crimes. Trump has been sued by the New York attorney general in civil court based on some of that evidence.

Investigations in Georgia with regard to election meddling and by the Justice Department with regard to January 6 and his treatment of classified data also seem more consequential.

But these cases are being pursued by different entities at different paces in different governments – New York City; Fulton County, Georgia; and the federal government.

“I do think that the charges are much more serious against Trump related to the election,” Hasen said in his email. “But falsifying business records can also be a crime. (I’m more skeptical about combining that in a state court with a federal campaign finance violation.)”

Would Trump have fingerprints collected? Take a mug shot?

Ahead of the indictment, one federal law enforcement source told CNN’s John Miller that Trump’s Secret Service detail was actively engaged with authorities in New York City about how this arrest process would work if Trump was ultimately indicted.

It’s usually a routine process of fingerprinting, a mug shot and an arraignment. It would not likely be a public event and clearly his protective detail would move through the building with Trump.

New York does not release most mug shots after a 2019 law intended to cut down on online extortion.

Where do you find an impartial Trump jury?

As Trump is among the most divisive and now well-known Americans in history, it’s hard to believe there’s a big, impartial jury pool out there.

The Sixth Amendment guarantees “the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”

Finding such a jury “won’t be easy given the intense passions on both sides that he engenders,” Hasen said.

Trump’s advisers and allies have expressed concern that the former president will not get a fair trial in Manhattan due to the borough’s predominantly Democratic-voting population.

“There is no way he gets a fair jury,” one adviser told CNN. “What are they going to say – have you ever heard of Donald Trump? Have you been living under a rock?”

A Quinnipiac University poll conducted in March asked for registered voters’ opinion of Trump. Just 2% said they hadn’t heard enough about him to say.

The New York State Unified Court System’s trial juror’s handbook explains the “voir dire” process by which jurors are selected. Those accepted by both the prosecution and defense as being free of “bias or personal knowledge that could hinder his or her ability to judge a case impartially” must take an oath to act fairly and impartially.

How could a jury be protected?

This is an important question since the rhetoric regarding Trump gets overheated on both sides of the political spectrum, and there are multiple recent examples of political violence. One way to protect jurors is to keep them anonymous. This has been done for mob trials in the past and is being done in another current case involving Trump.

From CNN’s Dan Berman: The judge handling the civil lawsuit of E. Jean Carroll against Donald Trump says jurors’ personal information will be kept confidential and other security measures will be taken to protect them, citing the former president’s history of attacking the legal system.

Carroll says Trump raped her years ago and then defamed her when he denied the rape. Trump denies any wrongdoing. Berman notes that media organizations have opposed keeping the identities of jurors anonymous.

Could Trump ever be jailed?

We’re getting ahead of ourselves. He hasn’t been tried, much less convicted.

“I don’t expect Trump to be put in jail if he is indicted for any of these charges,” Hasen said. “Jail time would only come if he were convicted and sentenced to jail time.”

The idea that Trump would ever see the inside of a jail cell still seems completely far-fetched. Hasen said the Secret Service would have to arrange for his protection in jail. The logistics of that are mind-boggling. Would agents be placed into cells on either side of him? Would they dress as inmates or guards?

Top officials accused of wrongdoing have historically found a way out of jail. Former President Richard Nixon got a preemptive pardon from his successor, Gerald Ford. Nixon’s previous vice president, Spiro Agnew, resigned after he was caught up in a corruption scandal. Agnew made a plea deal and avoided jail time. Aaron Burr, also a former vice president, narrowly escaped a treason conviction. But then he left the country.

The case where Trump has been indicted, apparently involving cover-up of hush-money payments, may not be the kind of crime that would lead to jail time.

“Judges have very broad discretion in whether to sentence a person to prison and for how long,” said CNN senior legal analyst Elie Honig in a video explaining why it’s difficult to send powerful people to prison. He added that any conviction would surely be appealed and that process, particularly when it features a former president, could go all the way up to the Supreme Court.

If Trump is jailed, would the Secret Service go with him?

We’ve gotten this question multiple times, but it seems too premature and unprecedented as to be answerable at the moment. Let’s let the legal process play out. Clearly the Secret Service is responsible for the former president’s safety, even if that is in jail.

How will the Secret Service act if Trump is arrested?

That remains to be seen. Jonathan Wackrow, a former Secret Service agent and current global head of security for Teneo, said on CNN prior to the indictment that agents are taking a back seat – to the New York Police Department and New York State court officers who are in charge of maintaining order and safety, and to the FBI, which looks for potential acts of violence by extremists.

The Secret Service, far from coordinating the event as they might normally, are “in a protective mode,” Wackrow said.

“They are viewing this as really an administrative movement where they have to protect Donald Trump from point A to point B, let him do his business before the court, and leave. They are not playing that active role that we typically see them in.”

Will there be a ‘perp walk’?

The New York Times published a report prior to the indictment and based on anonymous sources close to Trump that suggested he is, either out of bravado or genuine delight, relishing the idea of having to endure a “perp walk” in New York City. The “perp walk,” by the way, is the public march of a perpetrator into a police office for processing.

“He has repeatedly tried to show that he is not experiencing shame or hiding in any way, and I think you’re going to see that,” the Times reporter and CNN political analyst Maggie Haberman said on the network earlier in March.

Could such a display actually help him?

“I do think there’s a part of him that does view this as a political asset,” said Marc Short, the former chief of staff to former Vice President Mike Pence, during an appearance on CNN prior to the indictment. “Because he can use it to paint the other, more serious legal jeopardy he faces either in Georgia or the Department of Justice, as they’re politically motivated.”

But Short argued voters will tire of the baggage Trump is carrying, particularly if he faces additional potential indictments in the federal and Georgia investigations.

This story has been updated with additional information.


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