Think that an imprisoned former president is barred from running again for the nation's
highest office?
Well, you'd be wrong!
From continuing Secret Service protections to outpourings of support, here's what else
could possibly happen if a former American president went to jail.
Just how a president would be convicted and jailed and what such a sentence would mean
for the country is a tricky puzzle for historians, legal scholars, and politicians.
One reason it's so difficult is that there's no prior instance to look to in American history.
No president has faced a court or served time after leaving office.
And two past cases that might have been instructive are what-ifs — they never came to trials
or incarceration.
The first case concerns John Tyler, the 10th U.S. president.
Ascending to the office following the death of William Henry Harrison after just 32 days
in the White House, Tyler is a little-known but pivotal figure in the history of the presidency.
He established that a vice president assumed the full powers of the president if the incumbent
died in office.
But when the Civil War broke out in 1861, Tyler went with Virginia into the Confederate
camp and was elected to its Congress.
Before the war ended, he died and was thus unavailable to serve as an example of a jailed
ex-president guilty of treason.
"That's treason."
The other potential guide would have been Jefferson Davis.
He claimed an equivalent rank as president of the Confederacy, made it to the war's end,
and was set to go to trial.
He might even have won it, but President Andrew Johnson pardoned all the rebel leaders, Davis
included.
If America has no precedent in its history for an ex-president going behind bars, other
nations have seen comparable developments in their recent history that might offer an
example.
Salon recorded several while mulling over Donald Trump's possible future.
Italy sent their former prime minister Silvio Berlusconi to prison in 2013 for tax fraud,
though he was allowed to spend his sentence doing community service.
Israeli prime minister Benjamin Netanyahu has been indicted, though as of July 2022,
his trial remains ongoing.
And in France, a former prime minister, François Fillon, and a former president, Nicolas Sarkozy,
each received a short prison sentence.
None of these countries have a presidential system of government in the style of the United
States.
But there are presidential republics that have dealt with former chief executives accused
of crimes.
Argentina's Carlos Menem, Peru's Alberto Fujimori, and Brazil's Luiz Inácio Lula da Silva have
all gone behind bars.
But if South America's example shows that prosecuting a former president can be done,
it also shows the dangers of going down that road.
Whether Menem, Fujimori, or Lula committed the crimes they were accused of, their supporters
believed them victims of political machinations.
The convictions didn't improve national stability and, at least in the short term, helped to
exacerbate disunity.
Suppose that a former president was credibly accused of crimes and the case came to trial.
One would hope that it could be conducted with impartiality.
After all, America was famously meant to be a government of laws, not men.
But the plain fact is that no prominent figure in government could be tried, even out of
office, without the risk of political passions overriding the law.
Such risks have been proven in American history.
Aaron Burr is best known for killing Alexander Hamilton in a duel.
Before that, however, he was Thomas Jefferson's disliked, distrusted, and duplicitous vice
president.
After his fateful duel, Burr was left off the Democratic-Republican ticket in 1805 and
sought to remake himself out west.
Just what sort of reinvention Burr planned is unclear; he may have wanted to make money,
conquer Mexico, or carve out U.S. territory for his own empire.
The latter would constitute treason.
"Can we call that treason?
Why not?"
When the allegations reached the White House, Jefferson was convinced of Burr's guilt — so
convinced he named him traitor without an arrest, indictment, or trial.
He was just as hostile to Supreme Court Chief Justice John Marshall, a political rival.
Jefferson attempted to direct the prosecution from the White House and even tried to stack
the jury.
But hard evidence against Burr was weak, and Marshall ruled that no overt act of treason
could be attributed to Burr.
Trials by jury are a difficult business.
The accused could be guilty as sin, but unless the evidence against them is solid and presented
satisfactorily, they're unlikely to see justice.
Should the accused be a one-time president, possessed of great political support and the
vestigial glow of respect from the office, any prosecutor's task becomes more difficult.
The Atlantic explored all this in the context of Donald Trump's legal woes since his 2020
electoral defeat.
Allegations of fraud by Trump in the New York real-estate business may have compelling evidence
behind them, but they also represent common practice, a fact that could strengthen a defense
built on claims of politically-motivated attacks.
And any charges brought against Trump for the January 6 insurrection would have to make
an argument that his failure to restrain the mob — in other words, doing nothing — was
a crime.
"Because you'll never take back our country with weakness.
You have to show strength and you have to be strong."
But a hypothetical prosecutor arguing against a hypothetical former president should count
themselves lucky that the accused is out of office.
Any attempt to bring a case against a sitting president would be further complicated by
legal theory.
The Department of Justice maintains a policy that federal charges can't be brought against
a sitting president.
That stance has faced significant criticism from legal scholars, to be sure — Vox collected
rebukes from 16 of them.
But many presidents have also used the unitary executive theory to defy legal restraints
and frustrate investigation.
If a president ever committed a crime, under the current policy at the Department of Justice,
they would have to become a former president to face charges, and removing the president
from office would require impeachment.
"Because people have gotta know whether or not their president is a crook.
Well, I'm not a crook.
I've earned everything I got."
The House of Representatives is only the House that has the power to impeach a federal official
like the president.
Should a majority of the House vote to impeach, the trial is conducted by the Senate, with
designated managers set by the House to serve as prosecutors.
It's a difficult process, complicated by partisanship.
Only 20 officials have been impeached in U.S. history, and only eight have been convicted
by the Senate — all of them federal judges.
But if a president were ever to be impeached and convicted, why wouldn't that send them
to jail?
The Constitution limits the power of impeachment to removing federal officials from their posts.
The Senate could decide that conviction disqualifies an individual from returning to power, but
it has only done so three times.
On the other hand, unlike criminal trials, the Senate is allowed to set its own rules,
and those rules are subject to change with a majority vote at any time.
But the fact that impeachment isn't a criminal trial is what lets a president removed by
that process face a criminal trial; it would be double jeopardy otherwise.
"But this is what the end result is."
Picture all the headlines, the articles, the hours of television spent on Donald Trump's
potential legal liabilities while in the Oval Office.
Now try and imagine what the media landscape would look like if he, or any other president,
were sent to prison.
Even in the hyperactive news cycle of 21st century America, such an event would likely
consume the media to the neglect of most any other issue, at least in the short term.
Such an uproar would likely incite public passions and further destabilize an already
fractured citizenry, as happened in South American countries where an ex-president was
convicted.
In an ideal world, the tempers of the moment wouldn't impede justice.
If an ex-president committed serious crimes, appropriate punishment should be forthcoming.
But in the world as it is, the disruption of such an event on the nation is at least
worth considering.
Gerald Ford cited exactly such concerns when he decided to pardon Richard Nixon.
Nixon's resignation from office spared him impeachment, but indictments against him were
being prepared when Ford took his place.
The Constitution empowers the Senate to remove an impeached president from office should
they vote to convict.
It also allows them to prevent the ex-president from holding federal office again — but
it does not require that they do so.
If no such ban is put in place, there's no reason the former commander-in-chief couldn't
run again, even if they had to do so behind bars.
There's more precedent for campaigning to be president from prison than there is for
sending an ex-president there.
Eugene V. Debs was the Socialist candidate in 1920, despite serving time for protesting
World War I, and Keith Judd ran in West Virginia from prison in 2012.
Perhaps not surprisingly, no such candidate has picked up a single electoral vote.
Prison time, fairly or not, puts a certain stigma on a person when looking for any work,
let alone high elected office.
But if incarceration isn't a technical disqualification from campaigning, it needn't be a drag on
a candidate's chances either.
Luiz Inácio Lula da Silva served as Brazilian president from 2002 to 2010 before going to
jail for corruption in 2018.
If he hadn't already planned on retiring, the charges seemed the end of his political
future.
However, his conviction was annulled in 2021, and he announced a run against far-right incumbent
Jair Bolsonaro.
As of July 2022, Lula has the lead.
Generally speaking, people tend to be suspicious of those who've served jail time.
It's not always right, it's not always fair, but it is a natural reaction.
But as The Atlantic noted in discussing the possible conviction of an ex-president, that
instinct tends to break down when the incarcerated is a public figure.
That can certainly hold true when it comes to politics, where office holders are both
an instrument of policy and a symbol of political movements.
Party members can take any legal action against their candidate or incumbent as a politically-motivated
attack, which has happened in South America.
A politician who wields sufficient charisma and media clout could probably count on a
supercharged version of that scenario.
Salon predicted such an occurrence should Donald Trump ever serve time and cited the
example of Italy's Silvio Berlusconi.
Like Trump, Berlusconi is a tycoon-turned-politician frequently accused of authoritarian tendencies.
He was convicted of tax fraud in 2013.
But, also like Trump, Berlusconi has cultivated a cult of personality and commands a significant
number of loyal followers.
He maintains a prominent place in the Italian right-wing, and despite his conviction, he
maintained enough support among voters to win a seat in the European Parliament in 2019.
Let's suppose this long chain of events played out: A former president not subject to term
limits was convicted and sent to prison, campaigned for reelection anyway, and managed to eke
out a win.
Let's also suppose that this president's sentence wasn't up by the time they began their term.
How would that work?
Surely, a president has to reside in the White House and be free to conduct affairs of state?
Not necessarily.
The Constitution doesn't forbid convicts from running for president, and it doesn't require
the president to reside anywhere.
As long as you're at least 35 and a natural-born citizen in residence within the U.S. for at
least 14 years, you meet the stated qualifications.
Being a candidate wouldn't exempt the ex-president from prison rules, however.
Campaigning would have to be done by proxies, and some states might attempt to restrict
ballot access for the incarcerated.
If those hurdles were cleared and the jailed former commander-in-chief retook the position,
they could technically sign or veto bills, make appointments, issue executive orders,
and deliver a remote State of the Union address from their cell.
If they were in federal prison, they could designate the White House a correctional facility
to get back inside; a conviction at the state level wouldn't give them that opportunity.
Of course, all this assumes the president wouldn't issue a self-pardon — an act of
dubious legality never tested in the American system.
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