Former President Donald Trump speaks to media at Mar-a-Lago on Election Day, November 8, 2022, in Palm Beach. Photo / Andrew Harnik, AP
Presidential candidate Donald Trump faces more criminal investigations than any other US President in history. But will running for a second term in office shield him from prosecution? Or could he end up ruling from behind bars?
Trump has a long history of confrontations with justice.
For five decades, he’s been threatened with lawsuits and tax-evasion charges. And the Republican Party saved him from a record two formal impeachments.
But now he, and his family business, face an overwhelming tide of civil and criminal court cases.
His role in the January 6, 2021, insurrection attempt is under scrutiny. He’s being investigated for election tampering.
There’s an active criminal inquiry into how thousands of secret documents ended up at his Mar-a-Lago mansion. And questions about his financial and business practices continue to haunt him.
None have yet produced a formal charge.
And the reason why may be the inspiration behind Trump’s surprisingly early bid for the 2024 presidency. Put simply; the US Justice Department is not permitted to prosecute political candidates during any electoral campaign.
But, according to Arizona State University Professor of Law and Political Science Stefanie Lindquist, it doesn’t matter anyway: Under the US Constitution, “a jail cell could serve as the new Oval Office”.
“Confirmation of Trump’s White House bid comes at a curious time – a week after a lacklustre Republican midterm performance that many blamed on him,” says Lindquist.
That alone would usually put an end to any aspiring president’s hopes.
“The announcement has led some to speculate that Trump may be hoping that becoming a presidential candidate will in some way shield him from prosecution,” she adds. “The short answer is no.”
The US Constitution clearly defines the criteria to become president: Only natural-born citizens over 35-years-of-age who have lived within the US for 14 years. And that’s it/
While serving criminals can’t vote, US Congress has made it quite clear they can govern.
New York Baptist pastor Adam Clayton Powell was found guilty of corruption in the 1960s. Congress attempted to disqualify him from office.
But a Supreme Court verdict found “Congress has no power to alter the qualifications in the text of the Constitution.”
“For the same reason, no limitation could now be placed on Trump’s candidacy,” says Lindquist. “Even in the case of conviction and incarceration, a presidential candidate would not be prevented from continuing their campaign – even if, as a felon, they might not be able to vote for themselves.”
One significant legal hurdle faces Trump’s candidacy.
The 14th Amendment’s Section 3 disqualifies any person from holding federal office “who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The US Justice Department is investigating Trump’s involvement in the January 6 insurrection.
But enforcing the 14th Amendment requires legislation. And that means it would need to pass the Republican Party-controlled House of Congress. There seems to be little appetite to do so.
Calls for another Civil War – a war against the Constitution – are regularly upon the lips of US politicians and political pundits.
Newsmax host Carl Higbie recently raised the prospect of using violence to overthrow any legal indictment against Trump with former acting Attorney General Matthew Whitaker.
“Trump is also saying an indictment would tear this country apart,” Higbie said. “He’s not wrong. And I hate to — this is where we are. It pains me to say this but let’s say they indict Trump. What does this country do? Is this the beginning of the dreaded, dare I say, civil war?”
Whitaker replied: “The Department of Justice taking that step will cause mass chaos and anarchy in our country.”
But the insurrection charge has so far only been raised against the participants of the January 6 attack on Capitol Hill.
Being behind bars could see Trump ousted – for an unexpected reason.
“The 25th Amendment allows the vice president and a majority of the cabinet to suspend the president from office if they conclude that the president is incapable of fulfilling his duties,” Lindquist says.
It was intended to apply to matters of physical and mental health.
“But the language is broad, and some legal scholars believe it could be invoked if someone is deemed incapacitated or incapable for other reasons, such as incarceration,” she adds.
Again, however, it’s a matter for Congress.
Not the US Justice Department.
And only a two-thirds majority in the Republican-controlled House can produce such an eviction.
“Indeed, it is not clear that a president could not effectively execute the duties of office from prison, since the Constitution imposes no requirements that the executive appear in any specific location,” says Lindquist. “The jail cell could, theoretically, serve as the new Oval Office.”
Treason. Bribery. High crimes and misdemeanours. These are the US Constitution’s triggers for impeachment.
Again, however, it’s a matter for Congress, not the US Justice Department.
Trump’s already avoided two impeachment attempts. A third would be just as unlikely to succeed but it will invoke one of Trump’s most successful playing cards: Portraying himself as a victim.
He insists he is a target of “politically motivated witch-hunts”.
In politics, perception is everything.
Any attempt by Federal Department of Justice officers to prosecute him on any charge will evoke this well-tested battle cry.
Now he’s formally declared his intention to enter the presidential race, he can accuse any such move of being a politically motivated ploy by his opponent, President Joe Biden.
It won’t matter that the criteria for this exemption are clearly defined.
Any prosecution of politicians is barred for the 60 days leading up to an election. Trump’s still 14 months away from the next presidential poll.
So now that the US mid-term elections are over, he’s again fair game.
Meanwhile, Trump’s legal bills continue to soar. The US state of Georgia is considering charges of election fraud and criminal solicitation against him. The state of New York is on the brink of taking its tax evasion investigations to the next stage.
But the future of the January 6 Select Committee is in doubt now the House of Congress has changed hands. And that means no charge of insurrection may ever be issued against Trump.