Can Donald Trump stay out of prison?

While the impeachment proceedings against President Trump are ongoing and the elections are approaching, the U.S. president has other problems to worry about, problems that could get him into trouble after his presidency. Could Donald Trump end up in prison? And if so, Is there anything he can do about it?

Possible charges

Leaving aside the current impeachment proceedings, Trump still has a number of headaches that he will have to deal with as an ex-president. First, there’s Robert Mueller’s report. Although that long-awaited report had no consequences at the time, there is substance in it that a federal prosecutor can work with. That this has not happened so far is because the prevailing policy is that an incumbent president cannot be indicted. Special Prosecutor Robert Mueller has clearly indicated that his report is also intended to record evidence and that a president is not immune from prosecution after his term. This could include obstruction of justice, in particular the open attempt to dismiss Mueller when he was investigated and the fact that he later tried to cover it up.

Then there are also several investigations that are ongoing against Trump in the state of New York (spicy detail: Trump’s personal lawyer Rudy Giuliani led the New York Public Prosecutor’s Office in the 1980s). These include illegal campaign funding in the form of bribes paid to porn actress Stormy Daniels. The former president’s lawyer, Michael Cohen, was sentenced to three years in prison for this. In New York, there is also an ongoing investigation into tax fraud and an investigation into fraud with the Trump Foundation, a dubious charitable foundation of the president.

Washington DC also still has a lot to do with Trump, where an investigation is being conducted into fraud surrounding Trump’s inauguration. The inaugural committee would have been far too much overcharged for (international) guests who stayed at the Trump Hotel at the taxpayer’s expense. This is also the subject of a federal investigation.

These are just a few eye-catching cases. In addition, there are ongoing investigations into Trump’s involvement in witness tempting by Roger Stone, foreign donations, real estate fraud, insurance fraud, the hiring of illegal employees and a slanderous case of a participant in The Apprentice who accused Trump of assault. All these cases can at least be called a whole laundry list. In addition, it is not inconceivable that further cases will come to light after Trump’s presidency.

How can Trump avoid prosecution?

First of all, by remaining president for as long as possible. While not all legal scholars agree, it has been the policy of the U.S. Department of Justice for decades that an incumbent president cannot be charged. While there is nothing about it in the Constitution and the Supreme Court has never ruled on it, this policy is unlikely to change in the short term, especially under a Trump Cabinet. After Trump’s term as president in 2021 or 2025 he can definetly be prosecuted.

Is a presidential pardon then the way to go for Trump not to end up behind bars? It’s certainly a possibility that Trump will be pardoned by a successor. He may even be able to pardon himself. But if he then tries again to obstruct the course of justice, previous misconduct may serve as evidence. Also, a successor may ignore the presidential pardon and pursue prosecution. And there is another problem: presidential pardon only applies at the federal level and does not prevent the Southern District of New York from prosecuting the ongoing investigations there.

There is, however, a ray of hope for Trump; for many crimes there is a five-year statute of limitations. So after a second term there is a chance that he will be less vulnerable to prosecution. Unless prosecutors don’t see it as a one-off crime but as an ongoing conspiracy. That will undoubtedly lead to a lot of legal bickering. One last possibility (and perhaps the most likely) is that Trump tries to make a deal with the prosecution. Time will tell what that will look like.

What’s certain is that Trump has a vital interest in remaining president for as long as possible. That means that this year’s elections will probably be even more bizarre than those of 2016. In the meantime, the president -in his own interest- should try not to commit any new crimes because his second and last term only lasts four years. And that is shorter than the statute of limitations of five years. In any case, it will be an exciting election for the American president as wel as the American people.

Wouter Louwerens

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