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Would a second term save Donald Trump from prosecution–even jail time?

President Donald Trump listens during an event on Operation Warp Speed in the Rose Garden of the White House. AP Photo/Evan Vucci

What happens when two forces—inherently at odds—clash, as they soon could in the world of former President Donald Trump?

On the one hand, Trump is gearing up for a presidential run in 2024. At the same time, he is facing potential criminal indictments in Georgia and by the U.S. Justice Department for promulgating falsehoods about the 2020 election and his role in the Jan. 6 insurrection, respectively. 

Trump, whose candidacy in the 2024 presidential race is all but confirmed, has told those close to him that by pursuing a second term in the White House, he believes the accompanying executive privileges will shield him from ongoing and future prosecution, according to a Rolling Stone report.

Left to right: Michael Meltsner, the George J. and Kathleen Waters Matthews Distinguished Professor of Law at Northeastern; and Costas Panagopoulos, professor of political science.
Left to right: Michael Meltsner, the George J. and Kathleen Waters Matthews Distinguished Professor of Law at Northeastern; and Costas Panagopoulos, professor of political science. Photos by Matthew Modoono/Northeastern University

Will executive power be enough to stave off the onslaught of legal trouble Trump may soon find himself in? Department of Justice rules state that sitting presidents enjoy immunity from prosecution; but what about former presidents? Trump has also repeatedly invoked presidential absolute immunity, the principle undergirding the Justice Department policy, in an effort to escape liability in several civil suits against him challenging his role in the Jan. 6 insurrection. 

The Department of Justice has opened a wide-ranging probe into the Jan. 6 attack, Trump’s role in it and efforts to overturn the election. Attorney General Merrick Garland, however, has stated that the department needs “to hold accountable every person who is criminally responsible for trying to overturn a legitimate election and must do it in a way filled with integrity and professionalism,” according to the New York Times

The Washington Post reported that the Justice Department recently questioned several top aides of former Vice President Mike Pence before a grand jury about Trump’s actions in the lead up to the insurrection—and about conversations they had with the former president.

The prosecution of a former president for potential crimes committed while in office is a largely unprecedented phenomenon, says Costas Panagopoulos, head of Northeastern’s political science department. While there are examples of presidential candidates who have been handed convictions for federal crimes, there are no examples of past presidents who’ve been dealt the same fate. 

Prosecuting Trump presents similar challenges, he says, not least because officials have to account for the role of politics and the perception that carries with it. But political sensitivities alone “wouldn’t necessarily foreclose indictment or criminal conviction if the evidence is there to support it”—regardless of whether Trump is a private citizen, a presidential candidate or the nation’s commander-in-chief, at this stage. 

Still, the public conversation surrounding Trump’s legal fate continues only to invite conjecture. There is still “plenty of time,” Panagopoulos says, between now and the 2024 presidential election for prosecutors to lay out a case—although securing a conviction in such a high-profile case may significantly slow down the process

“The Constitution doesn’t say that a convicted felon can’t run for president,” he says. “But it also doesn’t say that a presidential candidate can’t be indicted or convicted.” 

Panagopoulos says Trump’s decision to run again following his 2020 defeat—itself virtually unprecedented in the country’s national history—could be simply a calculated legal strategy designed to skirt criminality. 

“One strategy for Trump would be to announce his candidacy before any legal action is taken in an effort to pressure officials in those roles not to proceed,” Panagopoulos says. “Or, if they do proceed, to make the case to the public that this is politically motivated.” 

How it all plays out depends on what crimes Trump would be charged with.

“Part of the story here is what specifically he would be indicted and convicted of to begin with,” Panagopoulos says. “If it’s insurrection, or aiding or comforting enemies of the Constitution, that could be more serious, and would generate considerable debate among experts and scholars about whether constitutional provisions would apply here.” 

Michael Meltsner, the George J. and Kathleen Waters Matthews Distinguished Professor of Law at Northeastern, has said that he believes there is enough evidence to “indict and convict” Trump based on evidence already presented for conspiracy to defraud the United States, illegally interfere with the electoral count and even sedition. 

Does Trump think that the office of president will provide the answer to all his legal problems?

“I’m sure that’s on his mind, but he may very well run even if indicted,” Meltsner says. “Trump has a record of acting on his perceived self-interested impulses. And the judgment of others doesn’t seem to stop him.” 

For media inquiries, please contact media@northeastern.edu

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