Former US President Donald Trump has been indicted – again.
This time he is suspected of attempting to overturn the results of the 2020 election. It is hard to imagine Trump is not guilty of these charges. The Congressional committee which investigated the insurrection of January 6, 2021 unearthed an enormous amount of evidence of Trump’s complicity with the violence of that day. This is likely what swayed the grand jury. Given that Trump is also facing two other indictments, the likelihood that Trump will be convicted is rising quickly.
What if Trump Wins from Prison?
All this raises the truly bizarre possibility of a candidate winning the presidency from prison. The last time a candidate for president won votes from jail was Eugene Debs in 1920. But Debs was a third-party candidate – a socialist – who stood no chance of winning. Trump, by contrast, is the leading candidate for one of the only two major parties in the United States. That automatically places Trump within reach of the presidency, even if he is in jail.
It is genuinely unclear what would happen if a jailed Trump won. Trump could not govern from prison, of course. The logistics of the job make that impossible. Trump would have to be let out to govern. But there is no legal mechanism to permit a duly convicted felon to leave prison for political reasons. He might ‘self-pardon’ to do that, but no one knows if that is legal or constitutional either. The entire mess would land before the Supreme Court in one of its most consequential cases ever.
There are Alternatives to Trump
The strangest element to this looming constitutional crisis is how easy is to avoid: there are a plethora of Republican candidates who offer policy similar to Trump and happily lack his personal and legal troubles.
Any one of them is a better standard bearer for Republicans to choose to promote their policy priorities. The country could avoid the national paralysis of an imprisoned chief executive if Republicans would simply vote for someone else. It is amazing, bizarre even, that Trump voter loyalty is unshaken even by his possible imprisonment – a scenario that would destroy the election chances of any other politician in America.
That Trump voters will not abandon him no matter what elevates him almost above politics. Trump loyalty is a super-political, psychological alignment, one more akin to a cult than a political party. The campaigns of the other GOP candidates are all premised on the idea that Trump will implode due to his legal troubles. But even that does not sway GOP primary voters. Trump is coasting to the nomination. The one candidate who looked like he might really challenge Trump – Florida Governor Ron DeSantis – is fading.
Trump is Forcing this on the Country
The closest parallel to Trump’s travails is the scandals around the presidency of Richard Nixon. Nixon was famously nearly impeached for Watergate. He chose to resign the presidency instead. He then wisely withdrew from American public life. He did not try to run again, nor contest the basic contours of his Watergate guilt as it emerged. The informal quid-pro-quo of this acceptance of disgrace was avoiding jail time. The country was willing to let Nixon off the hook so long as he went away and kept quiet.
Legally this was not ideal. Nixon’s criminality was well-established. There were good grounds to imprison him, and many of his associates caught up his crimes did go to jail. But Americans are, wisely, cautious about ‘criminalizing’ the presidency. Presidents should be able to govern without fear that they will be investigated when they leave office. Both Nixon – and ex-President George W. Bush regarding the use of torture during the war on terror – benefitted from this post-presidential public indulgence.
Trump makes such forbearance simply impossible. He refuses to keep quiet; he refuses to back down; he refuses to take the implicit deal of being let off the hook if he exits politics. If he had accepted his defeat in 2020, as all other defeated US presidents did, he would not have been indicted. If he had returned the national security documents he took to his private residence after his presidency, his home would not have been raided and he would not face that indictment either.
Trump refuses to accept rules and norms. He has so abused the public’s willingness to indulge its presidents, that there was no choice but to indict him. Nixon and other presidents who left quietly showed Trump the way to exit politics without scandal or prison. Trump refused. He has only himself to blame.
Dr. Robert E. Kelly (@Robert_E_Kelly; RobertEdwinKelly.com) is a professor in the Department of Political Science at Pusan National University and 19FortyFive Contributing Editor.
From 19FortyFive
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