Donald Trump's best chance to avoid prison might be to make sure he wins the 2024 presidential election. And if Trump is convicted and sentenced to prison, how would that affect his ability to function as president? The truth? No one seems to know, and one election-law expert said, “I don’t think that the Framers ever thought we were going to be in this situation.”
Those are two take-home points from a New York Times article about the possibility of Trump facing a third indictment -- this one for his alleged efforts to overturn results of the 2020 election, which he lost to Joe Biden. At The Morning newsletter from The Times, German Lopez writes:
In addition to this case, Trump already faces state charges in New York of falsifying business records to cover up potential sex scandals before the 2016 election as well as federal charges in the classified-documents case. And Trump may face separate state charges in Georgia over his attempts to stay in power; a local prosecutor is expected to announce an indictment decision soon.
Any of these cases could lead to a conviction and prison time. Or Trump could beat the charges in court.
There is one other possibility that his advisers have raised: He could win the 2024 election, potentially making it too difficult to imprison him or allowing him to use the powers of the presidency to drop the federal investigations and charges.
“When he was indicted in the documents investigation, his advisers were blunt that in their view, he needs to win the election as a defense against possible jail time,” Maggie [Haberman] wrote yesterday. “That only increases with an indictment related to Jan. 6 at the federal level.”
The circumstances put Trump’s presidential campaign in a different light. He is not running, as politicians typically do, solely to push a policy agenda, establish his legacy or gain power. He is running for self-preservation, too.
The U.S. has never confronted this scenario. Experts are divided over whether and how Trump could act as president if he were sentenced to prison. No one knows for certain how America’s political and criminal justice systems would handle that outcome. As Jessica Levinson, an election law expert, told The Times, “I don’t think that the Framers ever thought we were going to be in this situation.”
At the heart of Lopez' report, is this point: Trump's evolving legal peril raises issues many Americans likely never thought of before -- and that probably is because they had no reason to think of such issues. But Trump, it appears, is testing our system of government in a way it's never been tested before. Writes Lopez:
With a third indictment of Donald Trump now seeming quite likely — this one involving his attempts to remain in power after losing the 2020 election — [we] will cover three big questions about the case.
One, what would be the specifics of such an indictment? Two, would an indictment include significant new evidence, or focus on information that’s already known? Three, what are the chances that Trump may one day face prison time?
Regarding specifics of a possible third indictment, little is known at the moment, reports Lopez:
On [Tuesday, 7/18/23] Trump said he received a letter confirming he was a target in the federal investigation into his attempts to stay in power after the 2020 election, including any role in inciting the Jan. 6 attacks. Such a letter is typically a sign of an imminent indictment, my colleague Charlie Savage wrote. Any charges will require months to work through the legal system.
On what grounds could Trump be charged? Several possibilities exist: his attempts to obstruct Congress’s Jan. 6, 2021, proceedings; possible fraud related to fund-raising; and efforts to recruit so-called fake electors from states he narrowly lost. (Hours after Trump revealed the letter, Michigan authorities charged 16 people in the fake elector scheme.)
We know only a little about where prosecutors are focusing, and that information comes from the letter to Trump. It cited statutes that could be applied in a prosecution, including a potential charge of conspiracy to defraud the U.S. and a broad charge related to a violation of rights.
As for new evidence, that issue also is surrounded by question marks at the moment. But that is likely to change if a third indictment is issued:
Without seeing the evidence, experts are unsure how strong the case against Trump is. In the classified documents inquiry, investigators uncovered new evidence, including photos of documents in a bathroom at Trump’s Florida home and Trump suggesting in a recording that he knew he wasn’t supposed to have the papers. So far, the public evidence around Trump’s attempts to cling to power is less explicit.
Consider Trump’s involvement in the Jan. 6 riots: He made suggestive comments, including earlier that day at a rally in Washington. But none of them were explicit orders for an attack, and he eventually encouraged his supporters who had breached the Capitol to disperse.
Trump “is often both all over the place and yet somewhat careful not to cross certain lines,” my colleague Maggie Haberman, who covers Trump, has said. “At his rally at the Ellipse on Jan. 6, he told people to go ‘peacefully and patriotically’ but also directed them to the Capitol with apocalyptic language about the election. Frequently, people around him understand the implications of words, even when he’s not being direct.”
[He also has tried to recast Jan. 6 in a more positive light, Maggie explained.]
If investigators do have evidence that more directly links Trump to any potential charges, we will find out in the coming days or weeks, if an indictment is filed and made public.
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