“Trump could win from jail”: Experts explore the limits of prosecuting a presidential candidate

“Trump could win from jail”: Experts explore the limits of prosecuting a presidential candidate

As documented by historian Nancy MacLean and other experts, the Republican Party and larger right-wing and “conservative” movement have spent decades weakening the country’s democratic institutions to make such a revolutionary campaign even more successful and likely. Donald Trump and his forces were able to “win” the 2016 election, spend four years gutting long-standing democratic norms and institutions, and then come perilously close to a successful coup on Jan. 6, 2021, which was a plot that combined a terrorist attack on the Capitol, the Republican fascists in Congress sabotaging the Electoral College, the Supreme Court, and a nationwide plan consisting of election fraud, legal challenges, voter intimidation, and outright voter nullification. In the end, it was the American legal system and the courts, while bent and almost broken, that consistently impeded Donald Trump and the Republican fascists’ plans to end multiracial pluralistic democracy.

With Trump’s long-overdue indictment for federal crimes connected to his wanton (and now publicly admitted) violations of the Espionage Act, the rule of law is once again an obstacle to Trump’s plans to return to power where he will most certainly continue with his project to transform the country into a fake democracy and system of “competitive authoritarianism” modeled on Viktor Orban’s Hungary or Putin’s Russia.

It is in this context that Trump’s historic indictment on federal crimes takes on the most serious and potentially dire meaning. If Donald Trump is not convicted and put in prison for a very long time, then he and the neofascist movement and broader white right will be even more energized and free to continue their assaults on American democracy and freedom. In that way, Donald Trump’s trial for federal crimes related to the Espionage Act – and likely other federal felonies connected to Jan. 6 – will truly be the trial(s) of the century.

In an attempt to make sense of his truly historic moment, I asked a range of experts for their reactions to last Tuesday’s events and predictions for what comes next in the Age of Trump and the country’s democracy crisis.

Their answers have been lightly edited for length and clarity.

David Austin Walsh is a historian and interdisciplinary postdoctoral fellow in the College of Arts and Sciences at the University of Virginia. His forthcoming book is “Taking America Back: The Conservative Movement and the Far Right.”

Aside from a general sense of schadenfreude, it is refreshing to actually see a former president held accountable for violating the law. I think it’s a healthy sign for the rule of law in this country and for democracy. These concerns from conservatives—and even some liberals—that prosecuting a former president for violating the law is somehow dangerous for American democracy is ridiculous—this is exactly what liberal democracy is *supposed* to look like.

Now, that being said, I’m ambivalent about the specific charges. Let me stipulate by saying that, although I’m not a lawyer, the case seems to be pretty much a slam dunk, and the photos of boxes of documents in Trump’s bathroom are incredibly politically potent. And Trump being held to legal consequences for anything that he has done is ultimately a net positive. But the Espionage Act itself is a horrid law—a relic of World War I jingoism—that has historically been used to persecute political dissidents and whistleblowers and aggregate power in the national security establishment. And while Trump’s seizure of classified documents and refusal to return them is a textbook violation of the Espionage Act, it is significantly less serious a political—as opposed to legal—crime as his actions on January 6.

Former president Donald Trump is being prosecuted for crimes committed as a private citizen. If the message of prosecuting a former president is that no one is above the law, it’s muddied by this distinction.

There’s another reason I’m ambivalent. Trump’s indictment is a dramatic break from past practice with regard to legal prosecution of former presidents. Ford pardoned Nixon. Reagan and George H.W. Bush got off scot-free for Iran-Contra. Clinton never faced serious legal jeopardy post-presidency for his various scandals. And George W. Bush, of course, never faced justice for the Iraq War. Significantly, Trump is in legal jeopardy not for his actions as president, but for what he did after he left office. President Donald Trump, like his predecessors, remains legally inviolate. Former president Donald Trump is being prosecuted for crimes committed as a private citizen. If the message of prosecuting a former president is that no one is above the law, it’s muddied by this distinction. But they finally got Al Capone for federal income tax evasion, not for murder, racketeering, or Volstead Act violations, so sometimes you have to pick the clear-cut legal case to put away a career criminal.

I honestly don’t know what comes next. We’re in unprecedented territory, for any number of reasons. Obviously, a former president has never been indicted for federal crimes before, but even if we narrow our focus down to the personal, Donald Trump himself has never been indicted for federal crimes before! For all of the lawsuits the guy has faced over the years—and even hardened Trump watchers can lose count—this is by far his most serious legal jeopardy. In terms of the 2024 election, Trump is already positioning himself as the unjust victim of persecution by the Biden administration, which can and does play well to his core supporters within the Republican Party but is absolutely politically toxic outside of that space. It’s important not to exaggerate this — Trump could still very much win in 2024 — but given just how poorly the GOP has fared at the ballot over the past two years, a combination of anti-Dobbs backlash and the fallout from January 6, it’s important not to exaggerate the GOP’s level of electoral support. There’s also the question of violence. Trump, of course, actively incited a mob to attack the U.S. Capitol on January 6, 2021, after flirting with thinly veiled calls for violence during the entire election cycle. Just the other day, Louisiana congressman Clay Higgins had to walk back a tweet that suggested that armed Trump supporters take matters into their own hands. But—so far—there hasn’t been much violence.

The rally in Miami last Tuesday was relatively small and non-violent. The New York Times coverage suggested that this might be because of the aggressive prosecutions of January 6 insurrectionists, which is probably true, but it’s also significant that Trump himself is no longer president, and what’s at stake here is not the right’s control of the government but rather the prosecution of a private citizen by the government. I do take the January 6 insurrectionists at their word—most were convinced they were in a life-or-death struggle for democracy, which Joe Biden and the Democrats were maliciously subverting. Now, that was obviously a ridiculous and racist fantasy, but they believed it, and the emotional stakes there were intensified by the symbolism of the Capitol Building. It’s hard to generate that kind of political energy for a criminal case in front of a Miami courthouse.

Gregg Barak is an emeritus professor of criminology and criminal justice at Eastern Michigan University and author of “Criminology on Trump.”

First and foremost, I was both excited and relieved as there was always a possibility that this indictment or the others might not materialize. However, those feelings were short-lived and in less than one week’s time my anxiety and angst about the dire political realities facing this nation had returned to where they have been since the GOP won back control of the House this past January. I was especially distressed — but not surprised — by the reactions of the GOP leadership and those of the primary candidates for the 2024 Republican nomination for president. This includes Chris Christie, who as a former prosecutor did not really address Trump’s diversity and widespread criminality nor did he critique the former president’s weaponization or politicization of the Department of Justice (DOJ) and State Department nor did he try to curb let alone kibosh the current GOP attempts to attack the DOJ and to delegitimate its separate or independence from the White House post-Watergate.

With respect to governmental or classified documents, the Republican ringleaders all understand the critical differences between the intentionally lawless behavior of Donald Trump and the behaviors of Hillary Clinton, Joe Biden, and Mike Pence. They know perfectly well that there are not any factual equivalencies here and that the responses of the DOJ to the former president as compared to the others do not represent contradictory expressions of law enforcement and due process. They also know that the DOJ bent over backwards not to have to come after Trump until there was no other alternative but to indict him. Yet, GOP elected officials inside and outside of the House of Representatives and to a lesser degree in the Senate continue to circle the political wagons around Trump who is without any type of viable legal defense.

It is even more depressing that after being caught with and refusing to return nuclear secrets, for example, that Kevin McCarthy, Jim Jordan, and other high-profile Republican players are still on a mission to bankrupt the rule of law and our constitutional democracy by, so far, fruitlessly trying to politicize and weaponize these on behalf of themselves and the Racketeer-in-Chief whether he remains at large or confined in a federal prison cell somewhere. The problem in a nutshell is that the GOP still mistakenly thinks that their own abuse of power and corrupted behavior is somehow beneficial to their own political interests of power as if this was some kind of a fantasy game of thrones rather than a reality game of law and order.

There are several things that happen next in this saga:

“I can only imagine two ways that Trump does not get his party’s 2024 nomination – either death by natural causes or death by unnatural causes.”

Frontstage: Everything will be revolving, or should I say spinning chaotically around Donald Trump, which is precisely what his narcissistic and sociopathic personality feeds off of. Trump and his multiple lawsuits, both civil and criminal, will continue to grow in the near future, sucking up most if not all of the political oxygen, for at least the next two years as if the past eight years of this “stable genius” was not much more than enough. This will most certainly be the case unless somehow Trump does not become the GOP nomination for president in 2024. Unfortunately, because of the pathetic nature and composition of the Trumpian Republican Party, I can only imagine two ways that Trump does not get his party’s 2024 nomination – either death by natural causes or death by unnatural causes.

More specifically, by Labor Day Trump should be facing at least two more indictments, one in Georgia and the other in Washington, D.C. I can think of at least one or two if not three more possible criminal indictments in the not-so-distant future.

We will certainly continue to experience the polarizing narratives of democracy for all vs. anti-democratic authoritarianism (e.g., book and curricula censorship, or anti-woke, anti-gender, and anti-ethnic legislation) for the few. There will also be in the present time the continuing tensions between the competent Democratic governing as evidenced by Biden’s rather amazing track record over the first two years of his administration versus the incompetent Republican governing, warfare, and trashing of our institutions without any kind of constructive policy agenda besides that of defunding the people, the commons, and the environment while reappropriating those capital resources to the wealthy and to multinational corporations vis-à-vis a terribly regressive taxation system. 

The collective violence and assault on the Capitol that occurred on January 6th was an organized affair and not spontaneous in nature. This has been confirmed by the lack of any violence at both the Manhattan and Miami criminal indictments. In part, this has had to do with the government’s prosecuting and criminalizing of these violent behaviors as a deterrent, and in part, this has had to do with the historical circumstances that led up to and culminated in a failed coup by insurrectionists who believed in their heart of hearts that they had some kind of realistic possibility of stopping the certification of Joe Biden and returning Trump to the White House.

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In other words, even MAGA folks are not prepared to throw themselves under the bus for the Insurrectionist-in-Chief without some kind of purpose other than to scare or intimidate the authorities which nobody seems up for doing as Trump called for these actions in both Manhattan and Miami to no avail. Nevertheless, my concerns are that nothing much if anything has changed in the authoritarian thinking and behavior of Republican legislators on multiple legal fronts where they are busily engaged in eviscerating both constitutional democracy and the rule of law by trying to establish legally what Trump was unable to complete or accomplish illegally as president.

What is most disconcerting about these partisan trends by Republican in Congress like Ohioans J.D. Vance and Jim Jordan is that while they may be less likely to foment violence like Boss Trump in order to deconstruct the state apparatus, they are stepping up their political leverage or retaliation to accomplish the very same kinds of deconstruction of the state. For example, since the classified documents indictment Vance has been threatening as retaliation to block all Justice Department nominees, including the appointment of federal prosecutors. He and his allies are also working against the FBI and its quest for a new headquarters.

Alan Jenkins is a Professor of Practice at Harvard Law School where he teaches courses on Race and the Law, Communication, and the Supreme Court. His new book is “1/6: The Graphic Novel.”

Equal justice under the law is one of the foundations of our democracy, and it’s crucial that no one be above the law, no matter how powerful. Donald Trump should be treated no better and no worse than anyone else under our legal system.  If Trump did what he’s accused of doing with classified documents, it’s an outrageous threat to our national security as well as a federal crime, and there’s no question that any other American would be prosecuted for it.  By contrast, we have not yet seen legal or political accountability for the elected leaders who tried to undermine our democracy before, during, and after January 6, 2021. That includes Donald Trump, as well as over 150 election deniers in the U.S. Congress, among many others. 

We’re in uncharted territory with Donald Trump’s federal indictment. Trump’s strategy will be to delay the legal process as long as possible, in the hopes that he or some other Republican will be in the White House in 2025 and can either halt the prosecution or pardon him if he’s convicted. The prosecution will pursue a speedy process and, of course, multiple convictions.

I do hope that we will see the same kind of careful and incisive inquiry and, if the facts warrant it, prosecution of elected leaders for the insurrection that we are seeing with the recent Espionage Act indictment.

Charlotte Hill is a political scientist and policy analyst who focuses on revitalizing democracy. She is the director of the Democracy Policy Initiative at UC Berkeley’s Goldman School of Public Policy.

Emotionally speaking, it’s a tricky moment. Trump has been a flagrant criminal his entire life, and it’s a big win for the rule of law that he might finally be held accountable. Our criminal legal system is premised on the idea that no one is above the law. If a person with extraordinary political and financial power were to walk away with a mere slap on the wrist, that would destabilize the entire system. And yet—the promise of Trump’s prosecution is stoking the worst impulses of MAGA adherents. One survey estimated that sixteen million Americans agree that “the use of force is justified to prevent the prosecution of Donald Trump.” In our toxic hyper-partisan culture, Republicans would rather go to bat for a criminal co-partisan than denounce one of their own and suffer the ensuing identity crisis. Forgive me for not being ebullient. 

What happens in the primary is still up in the air, but I’d bet that Trump wins the nomination. The only thing he thrives on more than media controversy is political resentment—and this saga has both in spades. If past predicts future, the vast majority of Republicans will then vote for him in the general. It won’t matter what they think about his criminal issues, because they will never, ever vote for a Democrat. This destructive dynamic is a direct result of our two-party, “winner-take-all” political system—which we’ll hopefully reform before it’s too late. In a multiparty democracy, conservatives who were turned off by Trump’s lack of respect for the law and abhorrent personal character could rally around another candidate who hadn’t violated federal statutes (or, for that matter, incited an attack on the Capitol), all while maintaining a stable sense of political identity. But that’s not the party system we’re operating in today. 

“I am hoping everyone focuses on building strong relationships, investing time and energy into creating meaningful art and enriching their lives. That is the only thing that can sustain us through what has been and is bound to be a very challenging and dangerous period in our nation’s history.”

One interesting question will be how young people end up reacting to the indictment and prosecution over the coming year. We already see huge divides within the GOP by age group: when it comes to their beliefs about the importance of hot-button issues of immigration, violent crime, and gun policy, young Republicans are more closely aligned with young Democrats than with older Republicans. There’s also new evidence of young Republicans defecting from their party at the ballot box: in the 2022 midterms, a full 11% of young Republicans voted for a Democrat or a third-party candidate. If the indictment inspires young people across parties to consolidate in opposition to Trump, that could help drive a 2024 victory for Biden.

Shan Wu is a former federal prosecutor who served as counsel to Attorney General Reno. He is a frequent contributor the Daily Beast and appears regularly as a legal analyst in the media. 

I am experiencing a bittersweet reaction– there is satisfaction at seeing the well put together indictment and investigation yet bitterness at how slow the Department of Justice pace has been.  At this point, despite the excellent investigation by Jack Smith’s team being brought to a conclusion, Garland could have sped this up without the lost time it took to appoint a Special Counsel and had a hope of concluding the case before the red zone period of the elections. He failed to do this not once but twice by also missing the mid-term election “deadline.” In the futile effort to protect the Department of Justice from being attacked as partisan Garland has lost precious time that the country will not get back. The effort to avoid criticism has been futile. 

I also am frustrated that they brought the case in Florida. The delay game begins anew with every conceivable effort by Trump’s legal defense team to play to the weaknesses of Judge Cannon who previously showed herself susceptible to baseless legal ploys by Trump’s lawyers in the entire special master case. Whether her intentions really are seeking to corruptly aid Trump, or she is just inexperienced and clueless doesn’t really matter – what matters is the Trump lawyers will strive to throw every manner of delaying tactic at her and it will likely work.

I believe that the Department of Justice and Garland need to ratchet up the aggressiveness. If there are any other potential charges against Trump – for example in another jurisdiction like New Jersey – they need to ramp it up to gain prosecutorial leverage. Right now, despite building a case with very strong evidence they have zero leverage which is not a position that prosecutors are used to being in. They are used to the evidence supplying prosecutorial leverage, but this is an entirely political universe in many ways. Ironically, an Attorney General who truly is not politically motivated is at a severe disadvantage in a situation like this.

Paul Mason is a journalist, filmmaker, and author. His most recent book is “How to Stop Fascism: History, Ideology, Resistance.”

Throughout every stage of the psychodrama that Donald Trump has unleashed, I keep remembering one thing: fascism is the process, Trump is its product.

Where this goes next depends not on him but on the social forces trying to shape America.If a significant portion of GOP lawmakers, in Congress and at state level, take the line that this is a political prosecution, then when he goes down, they will be forced to follow the insurrectionary logic. They established the response – “this is political, America’s a dictatorship” – rhetorically over the Espionage Act in order to prepare for the much clearer slam dunk of any Georgia prosecution.

The problem is, I think Trump could win from jail.

The Democrats – observing a separation of powers on their own side – don’t seem to have a coordinated strategy to stop that from happening. The presidency has to lead a mass movement for democracy and the rule of law. Unless you adopt the strategy called in the 1930s “militant democracy” using all and active measures to disrupt plots, disinformation, armed groups, insurrectionary threats – then if the law and court sends Trump to jail, it could achieve very little.

Why this is important concerns not just the small fry with their open carry demonstrations: the state – across a wide range of institutions – has to confront the GOP leaders and the business leaders supporting Trump’s face-off with the law with the following scenario. The law will take its course. If Trump is guilty, and you act in a way that incites an insurrectionary response, you’ll find out whether the corporation is more powerful than the state.

Steven Beschloss is a journalist and author of several books, including “The Gunman and His Mother.” 

Any time I hear or read aggressive dismissals by Donald Trump’s defenders that it’s all political or just some corrupt plot by President Biden and the Justice Department to deny their hero his rightful return to the White House, I wonder: Did they actually read the 49-page indictment? Anyone who reads the plainly written indictment can grasp the reckless, willful behavior and see Trump is in serious legal jeopardy. Anyone insisting he did nothing wrong or claiming these 37 felony charges involving willful retention, obstruction of justice and the Espionage Act—often detailed with transcripts of Trump’s own damning words—are merely political persecution is simply gaslighting.

But as uplifting as I find the work of Special Counsel Jack Smith and his investigators to pursue the criminality without fear or favor—indeed to support the rule of law and equal justice—I worry about the seriously inexperienced and proven pro-Trump inclinations of Judge Aileen Cannon managing the criminal trial. I also wonder if we’ll ever learn whether Trump sold or otherwise shared this classified material with America’s adversaries, putting our national security and intelligence operatives at great risk.

But the fact is that, with this indictment, Donald J. Trump has never been closer to real accountability. That gives me hope for the months ahead.

Jennifer Taub is a legal scholar and advocate whose writing focuses on “follow the money” matters— promoting transparency and opposing corruption. She is the author of “Big Dirty Money: Making White Collar Criminals Pay.”

The initial news of the indictment on Thursday filled me with a sense of relief. This meant that Attorney General Merrick Garland decided not to block Jack Smith from seeking the grand jury indictment.

Then, the following day, when the document was unsealed, my sense of relief was replaced with a range of other reactions. What I was most pleased about was that several of Trump’s employees decided to cooperate with the government, it seems, and provided text messages and testimony without which this case might not have been brought. I was surprised by the number of Espionage Act counts. While I’d anticipated there would be obstruction, lying to the government, and some Espionage Act charges, I did not expect 31 counts along with a description of each document. Yes, there was reporting to this effect, but it was still infuriating that Trump would be retaining and, in some cases, sharing with members of the public documents with the most sensitive information that could harm our national security. Things like our nuclear preparedness and the like. I was also surprised that his lawyer Evan Corcoran kept such detailed notes of Trump requesting that he destroy documents or withhold them from the government. To be clear, I am not surprised he asked Corcoran, as that’s what he did according to the Mueller report, I am just shocked that Corcoran both wrote it down and still continued to represent Trump up until last week.

In terms of next steps for this case in particular, I expect Trump’s lawyers who remain on the case to file motions to request dismissal of the indictment. Plus, they will use any and every tactic they can to delay any trial until after the 2024 presidential election. Outside of court, Donald Trump will continue to attack the prosecutor personally, the case specifically, and the entire Biden administration more generally. He will repeatedly and publicly make false comparisons between himself and others to the point that out of repetition and confusion hundreds of millions of people who support him as well as those who have been neutral or soured on him will begin to sympathize with him. He will continue to bully and threaten Republican elected officials and will most likely win the nomination from his party. He may also support a third-party candidate who could pull votes away from Biden. I hate to be so pessimistic, but he will not give up his egotistical drive to regain the office of the presidency. 

Meanwhile, there will possibly be an indictment out of Fulton County, Georgia (related to the interference in the vote count) and a second one from Special Counsel Jack Smith (related to the 2020 presidential electoral count interference and the January 6th insurrection.)  How this will all fit in before the 2024 election while there is also the Manhattan DA case is a mystery to me.

I am hoping everyone focuses on building strong relationships, investing time and energy into creating meaningful art and enriching their lives. That is the only thing that can sustain us through what has been and is bound to be a very challenging and dangerous period in our nation’s history.

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about Trump’s historic federal indictment