Can Donald Trump run for President from prison?
Could he govern from a jail cell?
The possibility seems less remote by the day.
Donald Trump and All of the Drama
The former President is under indictment by the state of New York for financial crimes and by the Department of Justice for criminal handling of confidential documents.
Mr. Trump may soon come under further charges from Georgia (for election interference) and again from DOJ on charges associated with the January 6 autogolpe that attempted to overturn the 2020 election.
While trial dates remain in flux, conviction on any of these charges could send the former President to prison for a long time.
What History Tells Us
There’s not much precedent for running for President while under indictment, much less while serving time.
In 1920 Eugene Debs ran for President on the Socialist ticket while incarcerated in Georgia. However, Debs only captured 3.41% of the vote (his best showing in five Presidential runs) and isn’t a particularly good comparison for Trump.
The same mostly holds for other major electoral offices. The United States is not generally lawless and even chief executives have to serve time when they’ve done the crime.
It’s not at all uncommon for state governors to find their way to prison, although few or none have governed from a cell. South Dakota Congressman Bill Janklow killed a guy while driving in 2003, but resigned shortly before serving his one hundred day sentence.
Trump evidently feels that his legal jeopardy improves his chances of reclaiming the Presidency, or at least winning the GOP nomination. He has broadcast every indictment on every social media platform that will have him, and the results (among Republican primary voters, anyway) seem to confirm his intuition that the legal difficulties are a boon, not a hindrance. Trump has hinted that he will pardon himself from any charges, raising the stakes for the 2024 election and presumably motivating his base.
And of course the President could only pardon himself for federal crimes, not for state crimes. Trump could still face a dangerous legal situation in Georgia or New York if elected.
Does that mean that the President could serve time in state prison? Probably not, and not just because his legal team could push the appeals process out for years. In the case of Georgia, the State Board of Pardons and Paroles would come under enormous pressure to pardon or commute Trump’s sentence. The New York situation is more complicated, as Governor Kathy Hochul faces a different electoral coalition, but it’s likely that she would also come under considerable pressure to ease the terms of any confinement (especially since the charges against Trump in New York do not involve treason or electoral malfeasance).
Unfortunately, while the idea of Donald Trump serving as President while serving time seems superficially appealing, it’s almost completely unworkable in practical terms.
The President of the United States has extensive domestic and foreign duties, and the inability of Trump to perform those basic duties would severely handicap the US government. Even in the absence of a pardon, arrangements would need to be made to allow Trump to fulfill those responsibilities until the end of his term.
More Drama to Come
But this hardly means the legal processes that have been initiated in Georgia, New York, and the federal Department of Justice are meaningless. The rule of law includes Donald Trump, his considerable wealth and vast following notwithstanding. Perhaps more importantly, while Trump’s fans may find themselves turned on by each new indictment, there’s little indication that the broader electorate has much of a sense of humor about the situation.
Donald Trump leads a minority coalition that won in 2016 in an electoral college squeaker, and that lost 2020 by a considerable popular margin. Trump needs to expand his reach, not to intensify the support of his base. There’s little to no indication that the indictments are helping him with independent voters or with Democrats.
This means that Trump’s situation in 2024 is dire; he faces defeat in the popular vote for the third consecutive election, with life in prison as the consequence.
Dr. Robert Farley has taught security and diplomacy courses at the Patterson School since 2005. He received his BS from the University of Oregon in 1997, and his Ph. D. from the University of Washington in 2004. Dr. Farley is the author of Grounded: The Case for Abolishing the United States Air Force (University Press of Kentucky, 2014), the Battleship Book (Wildside, 2016), Patents for Power: Intellectual Property Law and the Diffusion of Military Technology (University of Chicago, 2020), and most recently Waging War with Gold: National Security and the Finance Domain Across the Ages (Lynne Rienner, 2023). He has contributed extensively to a number of journals and magazines, including the National Interest, the Diplomat: APAC, World Politics Review, and the American Prospect. Dr. Farley is also a founder and senior editor of Lawyers, Guns and Money.