WILL TRUMP EVER DO TIME?

NEW EVIDENCE OF CRIMES HAS TRIGGERED AN UNPRECEDENTED DEBATE OVER THE WISDOM AND PRAGMATICS OF CHARGING, TRYING, CONVICTING & JAILING A FORMER PRESIDENT

- DAVID H. FREEDMAN

MOST LEGAL AND CONSTITUTIONAL experts agree: Given the facts that have come to light about former President Donald Trump’s role in the mob attack on the Capitol on January 6, 2021, and the efforts to overturn the results of the 2020 presidential election, it is now plausible that he will be charged with crimes, tried and convicted. “It’s no longer premature to say that Trump could end up in prison,” says Michael Conway, a longtime trial lawyer who started his career as counsel for the House Judiciary Committee during the impeachment inquiry into Richard Nixon in 1974 , and who now teaches ethics and the law at Northwestern University. “It’s a winnable case.”

The same experts are quick to point out that no criminal case is a sure thing, and that’s triply true for the prospects of tagging Trump with a crime. For one thing, allegations of misdeeds, including fraud, sexual assault and treason, have dogged Trump from the 1970s through his presidency. He has yet to face a criminal trial, let alone conviction.

More important, the closest any former U.S. president has ever come to being charged with a crime is Ulysses S. Grant, who was arrested and fined for speeding in a horse-drawn buggy in 1872. Breaking that 150-year streak could shake the already weakened foundations of American democracy. “Prosecuting a former president is a highly fraught thing to do, especially when a president retains as much support as [Trump] still does,” says Tom Ginsburg, a professor of international law and political science at the University of Chicago and co-author of the book How to Save a Constitutional Democracy. “It opens the door to spurious prosecutions of political opponents down the road.”