Can Trump still end up in jail?
For years, Donald Trump has been shouting at his supporters demanding that Hillary Clinton be thrown in jail. But can it finally happen that we see Trump himself in prison coveralls?
On January 20, at 12 noon, Donald Trump will become a private individual and will no longer have a large shield to protect the incumbent U.S. president from prosecution.
Of course, in a state governed by the rule of law, no one can be imprisoned for bad political decisions alone if they are not criminal in nature or have not been enforced through criminal practices.
However, there is no analogy for Trump from any previous U.S. president, and potential crimes could be investigated, to what extent, from human rights abuses to tax fraud.
"Anyone else would have been charged with obstruction of justice."
The cost of prosecution
The crimes that Trump may have run as a candidate and president are primarily federal crimes that can only be prosecuted by the federal government - in effect, the future Joe Biden Department of Justice.
In the United States, the Department of Justice has traditionally been kept at a certain distance from the president to prevent politicization of justice. More than any of its predecessors, Trump has also violated this practice. Especially during the late term of Justice Minister William Barr, the Department of Justice was turned into an instrument to protect Trump and his friends and to harass Trump’s political opponents.
During his campaign, Biden said he would restore the old practice. He does not intend to encourage the Department of Justice to investigate Trump, but neither does it intend to prevent the Department of Justice from doing so. In practice, however, the ministry is unlikely to begin an investigation without Biden's blessing.
After the election, Biden is said to have said privately that he does not want to spend his entire presidency investigating Trump's actions. Biden would like to “move forward,” knowing that taking Trump to court would divide the nation. Many argue that the lawsuit against Trump would feel like a lawsuit against the 74 million Americans who voted for him at the same time.
Trumping would not stop trumpism. It would probably only strengthen the support of nuclear supporters for Trump, who would become a martyr.
The price of innocence
On the other hand, many point out that innocence would also come at a price. What would it mean for the rule of law if the highest decision-maker in the kingdom were not treated in the same way as others?
This view is based on the fact that Trump has done a lot that anyone else would be prosecuted for. The wounds of Trump’s term cannot be healed and the nation will not “move forward” if Trump’s potential crimes are left uninvestigated.
Many of the more than 81 million people who voted for Biden would be insulted if the investigation into Trump were not conducted for political reasons.
It has also been said that not prosecuting would remove all restraints on the next president like Trump, who would be as vicious as Trump but harder and sharper than Trump. Of course, the same risk could materialize if Trump were charged but not sentenced.
In her bid for the Democratic presidential candidacy a year ago, Kamala Harris said the actions of the Trump administration cannot be ignored because the president is not above the law. However, as vice president, he cannot act against Biden's will.
No precedents
No U.S. president has yet been prosecuted since his tenure. The rationale has generally been to avoid the division of the nation.
In 1974, Gerald Ford pardoned Richard Nixon for all possible crimes before the charges - including those that may not even have been known yet.
Elder George Bush was pardoned in the 1992 Iran-contra scandal during Ronald Reagan’s term, so Reagan was not investigated.
Barack Obama did not launch an investigation into the torture of prisoners of war by the George W. Bush administration, despite violations of both international and U.S. law.
Trump has pushed the boundaries of what a seated president can do with impunity. As Special Prosecutor Robert Mueller investigated possible connections to Trump's campaign with Russia, Trump ordered his staff not to be questioned or handed over.
More than 700 former federal prosecutors - appointed by both Republicans and Democrats - wrote in the spring of 2019 that if anyone but the incumbent president had done the same, he would have received heavy charges of obstruction of justice.
The obstruction of justice could, in principle, be opened up when Trump becomes a private individual. However, it is not considered likely.
Other possible criminal offenses at Trump's federal level include human rights abuses (separation of migrant children from their parents), violations of campaign finance laws, bribery, money laundering, and interference in the census.
It is also possible that new actions will emerge as long as the Biden administration gets to rummage through Trump’s ministries. In the end, it may be impossible not to prosecute.
Forgiveness of a close circle?
Trump has pardoned his accomplices convicted of crimes such as Roger Stone and Michael Flynn, limiting their chances of being witnessed.
Last week, it was reported that Trump and his staff were considering granting amnesty to their children Donald Jr., Eric and Ivanka Trump, his son-in-law Jared Kushner and his lawyer Rudy Giulian. The pardon would therefore come in advance before they are even charged with anything.
In addition, Trump is said to have even considered pardoning himself, but perhaps not even the U.S. legal system would be stretched for that - it certainly isn't.
However, the president is unable to pardon non-federal crimes. Trump may also be prosecuted for state and local crimes.
In New York City, two district attorneys are investigating Trump's transactions and charges can come at least from tax fraud and insurance fraud. On the other hand, state law gives white-collar criminals a good chance to shirk responsibility.
The lawyers Bob Bauer and Jack Goldsmith, who wrote the book After Trump, believe that in the end it is not just Trump that is at stake, but the structural problems that have emerged with Trump: the country’s legal and political system made it possible for Trump to function. They are proposing dozens of reforms on presidential accountability.
Maybe Donald Trump gets to skate on heavy charges, but in the end he gets caught up in tax fraud, for example, just like Al Capone once did. Then he will not be seen in orange overalls, but the verdict will be fine.
