Trump Is Unlikely to See the Inside of a Prison Cell

That's a massive indictment of America's justice system

Wikipedia Commons. Gage Skidmore.

Every few weeks, there’s news about potential criminal charges against Donald Trump. The New York state attorney general is investigating The Trump Organization for its accounting practices. The district attorney for Fulton County, Georgia, has convened a special grand jury to investigate Trump’s attempts to intimidate and coerce Georgia’s election officials. The U.S. House Jan. 6 committee has made repeated references to its suspicion of criminal activity by and around Trump, signaling that it will make a formal referral to the federal Justice Department. Both during and since his presidency, people close to Trump have been arrested on various charges, from his former campaign manager to his company’s chief financial officer.

It seems patently obvious that Trump has committed what most people would consider crimes both in his personal business affairs and in his official conduct as president, especially in his attempt to overthrow the 2020 election. In spite of all of this, the chances are slim that Trump will ever see the inside of a jail cell. Standing in the way are both genuine legal hurdles and America’s deep-seated reluctance to prosecute a president. The remedy that the Founders visualized for his actions in office, impeachment and disqualification, has also been rendered ineffective given the Republican Party’s stubborn refusal to hold him accountable.

The unfortunate reality is that other than the risk of losing future elections, both America’s legal and political systems are woefully incapable of imposing punishment for his actions.

“Much Like a Mobster”

Trump has a long history of getting away with personal corruption because his actions carefully take place in legal gray areas, skirting but arguably not crossing the limits of how the relevant offenses are defined. He has a well-developed habit of issuing instructions through implicit questions and indirect allusions. As his longtime “fixer” and lawyer Michael Cohen observed, this isn’t accidental. “He speaks in a code, and I understand the code because I’ve been around him for a decade,” Cohen explained in congressional testimony. The president, he said, ran his operation “much like a mobster would do.” He expects his minions to take the fall for his criminality. This deliberate ambiguity also has a tendency to keep things in the realm of mere civil penalties, such as those he’s sometimes faced for his business practices, rather than white-collar crimes with their more difficult-to-prove intent requirements. It’s no coincidence that the New York attorney general can pursue merely a civil, not a criminal, case against his organization.

But when it comes to Trump’s role in the Jan. 6 insurrection, he’ll be shielded not only by his well-honed mafioso tactics, but, more importantly, America’s deep political and cultural reluctance to prosecute its presidents. This reluctance is built into the U.S. criminal justice system, which goes to extraordinary lengths to insulate a president from prosecution.

Administrative Norms Against Presidential Prosecution

The  Department of Justice’s internal guidance (which is binding within the department) forbids criminally prosecuting a president while he is still in office. This protected Trump in both the Cohen case (which was investigating campaign finance violations related to hush money payments to adult film star Stormy Daniels with whom Trump had had an affair). It also protected him in the Mueller investigation (which was probing Trump camp’s collusion with Russia during the 2016 election). Mueller, on whom so much hope had been pinned, felt boxed in by the inherent contradictions of his task. In Mueller’s view, he could not fairly accuse somebody who would not then have the chance to rebut the charges at trial. Thus we ended up with the frustrating conclusion that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

The DOJ policy’s constitutional basis is debatable, but it is limited only to incumbent presidents. Yet no former president has ever faced criminal charges, either. Richard Nixon came closest after his resignation in the Watergate scandal, when it became clear that his administration tried to cover up its role in ordering a break-in of the Democratic National Committee’s DC headquarters. But Nixon’s successor, Gerald Ford, gave him a then-controversial pardon. Since then, his action has come to be remembered as a profile in courage by many, because it spared the country from the traumatic prosecution of a former president. Watergate involved a serious crime, but one that pales in comparison to trying to overturn an election and siccing a mob on Congress. But by excusing Nixon’s misconduct, Ford set a terrible precedent for tolerating even worse misconduct by Trump now. So perhaps we should look less fondly on Ford’s pardon.

The legal norms against prosecuting presidents in office and political norms once they are out of office means that they effectively get life-long immunity at least for misconduct while in the White House. But whatever good this does in keeping ill-intentioned partisan prosecutions in check is offset by the bad this does by giving presidents a get-out-of-jail free card. This would be the case even if the remedy for corrupt presidents in our system of government — impeachment — was working as intended. But impeachment depends on the president’s own party being semi-morally healthy, so that when his conduct becomes truly egregious, it would join the other side in impeaching him. This would minimize partisan witch hunts, while at the same time offering some modicum of presidential accountability. But even before the GOP’s descent into corruption post-Trump, impeachment had shown itself to be a pretty ineffective tool given how rarely it has been used.

There have been some attempts to create a prosecution mechanism that avoids rank partisanship. For example, there used to be an independent counsel statute that created a position appointed by federal judges, removable only for cause, and tasked with working more closely with Congress. This is the statute that governed Kenneth Starr’s obstruction-of-justice investigation against Bill Clinton in the Monica Lewinsky scandal. However, it was allowed to lapse because it ran into all kinds of practical problems. One issue was that the executive power of the federal government is vested solely in the president. That makes investigating an incumbent president difficult given his own power over the investigators. And in the case of ex-presidents, the new president is still always a partisan figure who is either an ally or opponent of the former president. Avoiding the appearance of partisan motives in either direction was thus nearly impossible.

American Exceptionalism: Presidents Are Too Big to Jail

America’s attitude in going after its presidents for misconduct is something of an outlier. Other stable liberal democracies, such as South Korea, Israel, and the Czech Republic, manage to prosecute former heads of state and heads of government for corruption and other crimes without sliding into autocracy or destroying multi-party democracy. Even in the United States, members of Congress, governors, and state legislators are all routinely indicted, and they usually deserve it when they are. But presidents are seen as special, the political emotions invested in them as too intractable. Too big to jail, in effect!

Trump has pushed the boundaries of this norm to the breaking point, underscoring why America’s reluctance in prosecuting presidents is such a bad idea. Indeed, the Constitution does not necessarily prohibit such prosecutions but there is little indication the Biden administration really wants to cross that Rubicon given that without Republican support, doing so would inevitably appear to be mere partisanship. In other words, Trump enjoys protection by political norms even as he vandalized every norm of good presidential behavior.

Escape Route in Legal Loopholes

Even if all of the practical and political barriers were overcome, there are difficult questions about whether Trump’s actions fall within the limits of defined criminal offenses.

Take his actions on Jan. 6, for instance. There is a plausible case that Trump’s actions crossed the limits of the Brandenburg test, the Supreme Court’s standard for incitement under the First Amendment. This test requires that the speech in question be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” His command to his supporters gathered at the Ellipse on Jan. 6 that if they didn’t “fight like hell” to “stop the steal” they were “not going to have a country anymore” would certainly seem to fit the bill.

But there’s also a reasonable case that it didn’t, because, in keeping with his mafioso style, he also covered his tracks by tossing out an offhand comment that his supporters should “peacefully and patriotically make your voices heard,” even though it was painfully obvious that he didn’t mean it. So it’s a close call at best. And federal prosecutors do not like to charge close calls, especially in such a high-profile case. Worse than failing to prosecute Trump might be attempting to prosecute him and losing.

The truth is that absent some direct coordination on Trump’s part with those who invaded the Capitol, it’s difficult to say what the crime in these actions is. This was atrocious behavior to be sure, but it’s not the kind of presidential conduct that is subject to criminal law. Of course if some smoking-gun equivalent of the Nixon tapes emerges with Trump on record coordinating the storming of the Capitol with the likes of Proud Boys and Oath Keepers, he could be charged with conspiracy and other similar charges, just as the leaders of those groups have. But as Cohen points out, Trump doesn’t give direct orders; he expects his minions to just understand the dirty work they need to do and then do it.

The strongest potential federal case involving the 2020 election results might be related to the scheme advanced by conservative legal scholar John Eastman and others to submit fake electoral vote certificates and use them as the basis to have then-Vice President Mike Pence block the counting and certification. A colorable case can be made that this was criminal fraud and conspiracy to obstruct an official proceeding. Trump himself was also undeniably involved with the effort given that although his close advisers organized it, he joined them in publicly promoting it. This has been the theory alluded to by the House Jan. 6 committee.

But here, too, the First Amendment hurdles are real. The Eastman scheme exploited an ambiguity in the Electoral Count Act  that arguably gives Congress the authority to accept the certificates for the fake electors. So creating such certificates can not be treated as criminal in part because Congress itself invited such antics. Petitioning Congress to do an insane, unconstitutional thing is bad, but it is not a crime, which is why the Electoral Count Act must be fixed to make it clear that Congress has no such authority.

When it comes to Trump’s attempts to bully and intimidate state election officials, such as his notorious call to Georgia Secretary of State Brad Raffensperger, the defense would be along similar lines. In asking for Raffensperger to “find” the number of votes needed to change the result, his malicious intent was obvious, especially when he also raised the prospect of criminal prosecutions. But the equally obvious defense is that, in his mind, Trump wasn’t demanding fraud but rather demanding the correction of the fraud he imagined had happened. Count only the “legal votes” was his team’s mantra, after all. While we can all see plainly enough that he was demanding something deeply improper and leveraging thinly veiled threats to do so, it is again hard to prove beyond a reasonable doubt that he was trying to solicit a crime, rather than pressing his (absurd, nonsensical, but seemingly sincere) beliefs that the election had been stolen.

The most recent bursts of talk about Trump’s potential criminal prosecution came with the revelation that the records of the White House switchboard turned over to the Jan. 6 committee contained a “gap” of more than seven hours on that fateful day. The immediate comparison to the notorious eighteen-and-half-minute gap in the Nixon Watergate tapes was obvious. There is a law requiring the preservation of presidential records, though it has no penalties or enforcement mechanism. There is also a criminal law covering in general terms, among other things, the potential destruction or concealment of any “public records.” That law is more clearly aimed at somebody who, for example, steals a document from the National Archives. As with so many other scenarios, stretching a malleable and very general statute in a novel way to reach Trump’s conduct isn’t frivolous, but it would be a stretch.

It’s probably moot, anyway, as it came out that no records for the White House switchboard have been destroyed or concealed. There’s nothing missing from what the committee asked for. Instead, during the crucial hours of Jan. 6 while the Capitol was being overrun, Trump had simply used direct landlines and/or his personal cell phone (maybe even a “burner phone”), which do not go through the White House switchboard. Once again, Trump broke the spirit of the law while not necessarily the letter — at least not in a way that can be proved beyond a reasonable doubt.

Given that Trump did in fact commit many moral and political crimes, it’s beyond frustrating that he faces no real prospects of ever facing justice. The temptation to grasp at each new breadcrumb to suggest “surely this time, Trump wearing an orange jumpsuit is imminent” is understandable. But those determined to resist Trump’s noxious brand of resurgent authoritarianism in American politics should come to terms with the reality that the criminal justice system is simply not going to save us.

Meanwhile, of the two political avenues of accountability, one of them, impeachment, was already tried twice and failed twice (though some good did still come of the attempts). The other is difficult and daunting, and it’s depressing that it needs to be done at all, but it was always the only real option: making sure authoritarian populism doesn’t win elections.

That means his Republican opponents must fight hard to deny him their party’s nomination. But given that these are few and far between (Sen. Mitch McConnell of Kentucky reiterated last week to Axios that he has an “obligation” to his party to support Trump if he becomes its nominee again, rather than an obligation to the country to prevent him from becoming one) he is still the heavy favorite to win the 2024 primaries. That leaves only the general election if he again gets that far.

Wishcasting for a righteous prosecutor to make him go away is not only unrealistic, but it could cause people to underestimate the danger and what needs to be done to effectively oppose him.

At the end of the day, there’s no substitute to persuading voters, who will make the ultimate decision. And as tempting as it is to want to see Trump behind bars, keeping him out of the White House is much more important.

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