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Could Donald Trump Become President While in Jail?

President of the United States Donald Trump speaking at the 2017 Conservative Political Action Conference (CPAC) in National Harbor, Maryland. Image Credit: Creative Commons.
President of the United States Donald Trump speaking at the 2017 Conservative Political Action Conference (CPAC) in National Harbor, Maryland.

Democrats and maybe even some independents want Donald Trump in jail. But will they get their wish?

He is certainly in substantial legal jeopardy. Everywhere he turns there lurks a grand jury or some type of investigation. But it is not clear what the charges would be if he gets indicted. He could be charged with both felonies and misdemeanors. Is that enough to send him to jail? Trump can afford the best lawyers possible, and they are adept at running out the clock for maximum due process.

There Could Be a Lesser Sentence than Jail Time for Trump

These delays could stretch into the general election campaign if Trump wins the Republican nomination. It is even plausible that Trump could be convicted and sentenced to jail while he is a sitting president. We are certainly in uncharted waters for this type of scenario and jail time is by no means likely for Trump should he reach the presidency. If convicted, he may get a lesser misdemeanor sentence of fines and probation. He could even be sentenced to community service which would be interesting to see how that would play out.

Trump Says Prosecutors Are Racist

The prosecutors who are after him in New York and Georgia happen to be Democrats and Trump is already calling them “racist” and politically motivated. They want to keep him out of power, Trump believes, and their prosecutorial efforts are meant to remove him from the White House even if Trump is successful at the ballot box.

The country has never had an ex-president facing jail time. John Tyler, the tenth U.S. president was set to be tried for treason, but he died before the criminal process could be completed.

Many Paths to a Criminal Trial

Trump could be prosecuted for his actions leading up to the events on January 6. A congressional panel recommended charges in four areas. There is a grand jury convened in New York for Trump’s alleged payout to adult video star Stormy Daniels that could be a financial or campaign-related crime. And he is facing a potential grand jury that could indict him for efforts related to overturning the 2020 presidential election in Georgia. Plus, there is the mishandling of classified documents where Trump could face criminal charges.

Re-election Even While in Jail

Hypothetically, Trump could go to jail and still run for president and even win the election while he is behind bars. This would divide the country even more and galvanize his supporters. It would not make the United States look good on the world stage.

The Legal Process Will Take a Long Time

Trump’s lawyers know how to slow down a criminal inquiry. If indicted, there would be a long process ahead for prosecutors. Former federal prosecutor Renato Mariotti writing in Politico thinks that Trump would be in the legal hotseat for months before a trial and that is just in the classified documents case.

“Typically defense counsel get months to review evidence, and in a case involving so many classified documents, that could be a slow process,” Mariotti pointed out. “The defense will file motions, which the judge could take months to consider. Trial would likely be 12 to 24 months away, in other words a range that would cover the entirety of the election year.”

Prosecutors Losing the in the Court of Public Opinion

And it could run into the presidency if Trump were to get re-elected. The process could drag out for years. The country may be willing to let Trump slide in the court of public opinion if voters deem the potential crimes were committed so long ago. For example, the January 6 insurrection was in 2021. It could be 2025 when a trial could happen. This would be old news and even cause some to have sympathy for Trump. He may even try to pardon himself should he reach the White House again.

A Nightmare for National Unity

All told, a Trump prosecution for one or more criminal charges would be bad for the country. His supporters may take it to the streets in protest while others would cheer it on. It is a recipe for division that would only create more hatred between Republicans and Democrats. Trump would allege that the legal system is stacked unfairly against him and a jury could agree. Indictments, a trial, and sentencing would be sure to tear the United States apart.

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Author Expertise and Experience: 

Serving as 19FortyFive’s Defense and National Security Editor, Dr. Brent M. Eastwood is the author of Humans, Machines, and Data: Future Trends in Warfare. He is an Emerging Threats expert and former U.S. Army Infantry officer. You can follow him on Twitter @BMEastwood. He holds a Ph.D. in Political Science and Foreign Policy/ International Relations.

Written By

Now serving as 1945s New Defense and National Security Editor, Brent M. Eastwood, PhD, is the author of Humans, Machines, and Data: Future Trends in Warfare. He is an Emerging Threats expert and former U.S. Army Infantry officer.