As I write, rumour has it that law enforcement officers are trying to lure Donald Trump out from under his bed with a cheeseburger, so they can arrest him. The mental image of The Donald being perp-walked by the NYPD in his pyjamas is very enticing.
We don’t actually know whether this dream will be fulfilled — it was Trump himself who claimed he was going to be arrested imminently, triggering a support rally outside Trump Tower that attracted five people. But there are solid indications from official sources that criminal charges are now highly likely.
Amazingly, Trump has never been charged with a criminal offence, testament to the wisdom of choosing to have rich parents. However, the legal walls have been closing in for a long time. The most likely, and simplest, case is being investigated in New York: that Trump paid money to former adult-film star Stormy Daniels to shut up her claims that they’d had an affair.
Meanwhile, federal prosecutors are looking at the 11,000 documents seized from Mar-a-Lago, 100 of which were classified and some top-secret. It seems that these were taken from the White House by conscious choice, triggering potential crimes under the Espionage Act. An independent special counsel has been engaged for the investigation.
More distant prospects of prosecution arise from continuing investigations into the January 6 insurrection, and the attempts to overturn the result of the 2020 presidential election. While Trump’s fingerprints are all over these events, it’s just not very likely that he’ll ever be charged with criminal responsibility. Why? Because that’s how the world works, kid.
No sitting or former US president has ever been criminally indicted, although president Ulysses Grant was arrested in 1872 for speeding in a horse and buggy. Apparently he didn’t turn up to court for his trial, so was never convicted. As it wasn’t an indictable offence, it leaves the record clear for Trump to own.
If Trump is indicted, what will it mean for his declared intention to run for president in 2024? In legal terms, nothing at all.
While Australia’s constitution imposes an absolute bar on convicted criminals (anyone who has been convicted of a Commonwealth or state offence that carries a prison sentence of at least one year) from being elected to federal Parliament, the US constitution is silent on the subject.
The only eligibility qualifications imposed by the constitution are that you are a US citizen born in the US, you’ve been resident there for at least 14 years, and you are at least 35 years old. There is no restriction relating to being a felon; even someone currently in prison can, and has, run for office.
So, should Trump find himself cooling his heels at Rikers Island awaiting trial, while the campaign for the Republican Party candidacy and then the presidency takes its tortuous course, there’s nothing stopping his participation or his ultimate election.
As to what happens if someone wins the election but is actually in prison, the constitution is also silent. That would be a question for the Supreme Court, currently populated by absolute lunatics, so it’s anyone’s guess what they’d decide. Since their general predilection is for “originalism” — sticking to the strict words of the document with the meanings they had in 1789 — presumably they wouldn’t imply any disqualification. That would clear the way for an administration run from behind bars. And, really, if Americans choose to give Trump another go, it’d be entirely fitting.
Congress itself can act, by invoking its power of impeachment, which it can do in any case to convict a president or other official of “treason, bribery, or other high crimes and misdemeanours”, and then voting to remove them from office. It is a political, not legal, question, and operates independently of any preceding criminal conviction.
Finally, there is the 14th Amendment, which disqualifies from office anyone who has “engaged in insurrection or rebellion” against the constitution. Which, of course, Trump has. But I’ve previously written about that, if you’re interested.
Ultimately, fascinating as all these intricacies of American constitutional law and practice are, the real point is one that the founding fathers went to great pains to make: that the principal danger to the democracy they crafted was, and always would be, the emergence of a politician with genuinely despotic intent and zero regard for democracy itself. Because no set of rules, no matter how carefully drawn, could provide sufficient protections against such a threat.
As Trump demonstrates by his endless facility for the unprecedented, they were right.
