By Rich Heiland, Columnist, The Times
CAN DONALD TRUMP be convicted, sentence to prison, actually go to jail and still serve as president of the United States. Well, yes, he can.
The U.S. Constitution, the ultimate arbiter, is silent on the criminality of a president.
A lot of people are assuming that if Trump is tried and convicted prior to the November 2024 general elections on all the charges he faces against three current indictments, with a likely fourth to come, that voters finally would reject him.
I am not sure why a lot of people think that. His rabid base, along with some not so rabid Republicans who would love another four years of executive orders and possible Supreme Court appointments, could be enough to land Trump four more years.
How? Without going into the electoral math, state by state, suffice it to say in some key states Biden’s 2020 win was not overwhelming. We already have progressive firebrand Dr. Cornell West planning to run. We have the new “No Labels” group making noise. These entrants are on top of the usual line up of third parties. Who knows what the landscape will look like by November of 2024, but Trump would win.
So, what if he does? It is likely that one or all the cases against him will have gone to trial by November of 2024. If convicted at the Federal level, there generally is a 90-day period between conviction and sentencing. Trump would remain free on bail during that. It’s also possible he could remain free after sentencing as the case is appealed.
But what if he actually is sentenced and begins serving that sentence. I am not expert on what the Federal possibilities would be for jailing an ex-president, but I suspect we would break new ground here. Even the softest of Federal “country club” facilities would pose legitimate security and logistical issues.
That’s why it’s likely he would be sentenced to serve his time at a place of his choosing, most likely one of his resorts. But, if he ends up under what amounts to house arrest at Mar-a-Lago, his most likely choice, it won’t be the resort experience he’s used to. He would be subject to many of the same conditions he’d be subject to in prison. He would have no phone, limited internet access, be restricted to his primary living quarters and not be able to receive guests. He would not be wandering into the dining room or hobnobbing with guests. His exercise would be limited to controlled time in close quarters. He could only dream of golf.
It’s Jan. 20, 2025. Trump takes the oath of office – somewhere. If he’s still out on bail, he could go ahead with the traditional oath-taking on the steps of the Capitol Building his mob defamed. If he’s confined at Mar-a-Lago any judge could give him the oath.
THE QUESTION REMAINS, how could he govern? The answer? It won’t be an issue.
As soon as he swears the oath, Trump could pardon himself and all those connected to his case who might have been convicted or on the path to conviction. This, however, would move things into a sticky area since there is no case law or other precedent for self-pardoning and no doubt it would have to wend its way through the courts.
His most likely path would be to invoke Section 3 of the 25th Amendment:
“Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.”
As soon as Trump takes the oath, he sends his written declaration to the Congress. Whoever his vice-president is then would assume all presidential powers, including that of issuing a pardon. Once that is done Trump then could send a second declaration that he is able to return to duty.
Ah, you say, what about a possible conviction in Georgia on election fraud issues (Trump and others were indicted Monday evening on various racketeering and conspiracy charges related to the 2020 election)? That’s a state court and a president cannot issue pardons in state cases. True enough. But this is where it gets interesting. The current governor of Georgia, Brian Kemp, is a Republican. But Georgia is one of the three states whose governor does not have the authority to grant clemency. That rests with the Georgia Board of Pardons and Paroles. That board is appointed by the governor.
The current board of five includes four who either identify as Republicans or have been active in party politics. If Trump were to seek a pardon from the current Board, the scales would seem to tilt in favor of it being granted.
The bottom line is that if Donald Trump is elected to another term, it is very likely that after jumping through some hoops he will settle into the White House again.
SO, WHAT ABOUT impeachment, assuming Democrats retake the House and gain enough Senate seats to convict? The Constitution lays out how a president can be impeached. It refers to “high crimes and misdemeanors.” What exactly are those? A lot of trees have fallen to provide the paper on which that question has been debated.
Probably more important to ask is “do those high crimes and misdemeanors have to occur during the president’s current term?” On this, the silence from the Constitution is deafening. Trump was twice-impeached, but not convicted, during his first term. If he is convicted, sentenced then pardoned of any crimes under the current indictments, could those be brought up as ground for impeachment during his second term? That likely would end up before the Supreme Court.
There also will be a strategic issue for Democrats to consider. What if Trump’s vice-president is, let’s say, Marjorie Taylor Greene? If you are laughing at the thought, you have not been paying attention to Trump. What would be worse than Trump? Hard to imagine but MTG just might be. So, Democrats, assuming they regain control of the House and keep the Senate, might be faced with four years of mitigating damage Trump could do with executive orders.
At any rate, the view from the bedroom window of my apartment in downtown West Chester is that anyone who thinks Trump will be made history by any convictions is whistling past the graveyard. I will welcome any convictions as a sign of the law working.
But in the end, that our Founding Fathers no doubt ever considered someone so despicable as Trump becoming president, and thus left much to be imagined in our Constitution, makes the unthinkable very possible.
Rich Heiland is a retired reporter, editor and publisher. He has been a part of a Pulitzer Prize-winning reporting team, National Columnist of the Year and a journalism instructor. He lives in West Chester.
