Presidents since 1965 have been afforded lifetime protection. Since then, only Richard M. Nixon has waived it, as a cost-saving move for taxpayers 11 years after his resignation.
But unless he follows Nixon’s example, Trump could force politically and logistically complex questions over whether officials should detail agents to protect a former American president behind bars, leave it to prison authorities to keep him safe, or secure him under some type of home confinement, former U.S. officials said.
Could Trump face prison? “Theoretically, yes and practically, no,” said Chuck Rosenberg, a former top federal prosecutor and counsel to then-FBI Director James B. Comey. Rosenberg served briefly as head of the Drug Enforcement Administration in the Trump administration and notably said the president had “condoned police misconduct” in remarking to officers in Long Island that they need not protect suspects’ heads when loading them into police vehicles.
“Any federal district judge ought to understand it raises enormous and unprecedented logistical issues,” Rosenberg said of the prospect Trump could be incarcerated. “Probation, fines, community service and home confinement are all alternatives.”
TRUMP INVESTIGATIONS
Donald Trump has been indicted in three cases and is under investigation in one other. The Washington Post is keeping track of where each Trump investigation stands. Here is a breakdown of all 78 charges Trump faces.
End of carousel
Trump is now facing three, separate criminal cases, with the prospect of at least one more on the horizon. He has a pending March trial date in a New York state fraud case. He was charged by special counsel Jack Smith in federal court in Florida over the handling of classified documents that were taken from his Mar-a-Lago home after he left the White House. In federal court in D.C., Smith’s team alleges Trump conspired to subvert the results of the 2020 election. He could soon be charged in Georgia on similar allegations.
The charges Trump faces technically come with the possibility of decades in prison — though pleas, verdicts and possible punishments are very far off.
Mary McCord, who served as acting assistant attorney general for national security during President Barack Obama’s administration and led the department for the first several months under Trump, said Trump presents unique challenges to the Justice Department. Ensuring some penalty for a former president under Secret Service detail would require extensive discussions and potential accommodations, “because it really would be a pretty enormous burden on our prison system to have to incarcerate Donald Trump.”
The question is an open one at the U.S. Secret Service. Asked whether a former president who does not waive protection can be incarcerated, agency spokesman Anthony Guglielmi said, “The Secret Service does not have a comment or response, only because there is no such policy or procedure that currently exists.”
“We won’t have any further comment,” added Marsha Espinosa, spokeswoman for the Secret Service’s parent agency, the Department of Homeland Security.
How do you imprison a former president? Former president Donald Trump appeared at a D.C. courthouse on Aug. 3 for an arraignment on charges that he conspired to overturn the 2020 election results.
“This question keeps getting raised, yet no official answers” from the Secret Service, said Jonathan Wackrow, a former Secret Service agent and now chief operating officer for Teneo Risk, a corporate advisory and communications firm. “However, we can infer how security measures could be implemented based on existing protective protocols. Unless there are changes in legislation or the former president waives protection, the U.S. Secret Service would likely maintain a protective environment around the president in accordance with their current practices.”
Current and former agents said Trump’s detail would coordinate their protection work with the Federal Bureau of Prisons to ensure there was no conflict about duties or about how they would handle emergencies, as well as the former president’s routine movements in a prison — such as heading to exercise or meals. The Secret Service, they said, would maintain a bubble around Trump in any case, keeping him at a distance from other inmates.
“In some ways, protection may be easier — the absence of travel means logistics get easier and confinement means that the former president’s location is always known,” Wackrow said. “Theoretically, the perimeter is well fortified — no one is worried about someone breaking into jail.”
The Justice Department’s Bureau of Prisons declined to say whether former presidents with Secret Service protection could be incarcerated, or to comment on circumstances of a possible Trump designation. However a spokesman said general factors can include the level of security an inmate requires, any health needs, proximity to their release locations and “separation and security measures to ensure the inmate’s protection.” The bureau has had to handle VIP inmates in the past, though minimum security camps often have dormitory style housing.
Another agency official said it was in a position similar to the Secret Service, lacking a policy or procedure.
What would sentencing look like?
The prospect of potentially decades in prison for Trump is politically loaded, though the charges he faces could carry such a penalty. After entering a not-guilty plea in Miami federal court on June 13, Trump claimed he was being threatened with “400 years in prison,” adding up the statutory maximum penalty for the 37 counts against him. The charges he faces in D.C. related to his alleged efforts to stay in power despite losing the election could add additional decades, based on that math.
Judges almost never apply maximum penalties to first offenders and rarely stack sentences rather than let them run concurrently. However, federal sentencing guidelines are highly technical. Specialists estimate that a first offender convicted of multiple counts of willfully retaining national defense information and obstructing or conspiring to obstruct an investigation by concealing evidence might face a range of anything from 51 to 63 months on the low end — about five years — to 17½ to 22 years on the high end — or about 20 years, given Trump’s alleged leadership role and abuse of trust.
Similarly, Jan. 6 riot defendants convicted at trial of two of the same counts with which Trump is charged — conspiring to or actually obstructing an official proceeding — have faced sentencing guideline ranges as high as seven to 11 years, and as low as less than two years.
But judges always have the final say.
“Without question, if it were anyone else [but Trump], prison would be a certainty,” said Thomas A. Durkin, a former federal prosecutor who teaches national security law at Loyola University Chicago. However, he said, “The Secret Service waiver issue is a novel and complex issue” that could theoretically factor into an exception.
The Justice Department has mounted at least a dozen investigations into the removal or unlawful retention of classified information since 2005. Pentagon employees, contractors and people employed by the FBI, the CIA and National Security Agency have all been convicted and sentenced to prison. Among the most recent, former contractor Harold Martin was convicted in 2019 and is serving a nine-year prison term for taking home a huge number of hard and digital copies of classified materials — the equivalent of 500 million pages. And former FBI analyst Kendra Kingsbury was recently sentenced to nearly four years in prison after taking home more than 300 documents including materials related to al-Qaeda and Osama bin Laden.
How Jack Smith Structured the Trump Election Indictment to Reduce Risks
In accusing former President Donald J. Trump of conspiring to subvert American democracy, the special counsel, Jack Smith, charged the same story three different ways. The charges are novel applications of criminal laws to unprecedented circumstances, heightening legal risks, but Mr. Smith’s tactic gives him multiple paths in obtaining and upholding a guilty verdict.
“Especially in a case like this, you want to have multiple charges that are applicable or provable with the same evidence, so that if on appeal you lose one, you still have the conviction,” said Julie O’Sullivan, a Georgetown University law professor and former federal prosecutor.
That structure in the indictment is only one of several strategic choices by Mr. Smith — including what facts and potential charges he chose to include or omit — that may foreshadow and shape how an eventual trial of Mr. Trump will play out.
The four charges rely on three criminal statutes: a count of conspiring to defraud the government, another of conspiring to disenfranchise voters, and two counts related to corruptly obstructing a congressional proceeding. Applying each to Mr. Trump’s actions raises various complexities, according to a range of criminal law experts.
At the same time, the indictment hints at how Mr. Smith is trying to sidestep legal pitfalls and potential defenses. He began with an unusual preamble that reads like an opening statement at trial, acknowledging that Mr. Trump had a right to challenge the election results in court and even to lie about them, but drawing a distinction with the defendant’s pursuit of “unlawful means of discounting legitimate votes and subverting the election results.”
While the indictment is sprawling in laying out a case against Mr. Trump, it brings a selective lens on the multifaceted efforts by the former president and his associates to overturn the 2020 election.
“The strength of the indictment is that it is very narrowly written,” said Ronald S. Sullivan Jr., a Harvard Law School professor and former public defender. “The government is not attempting to prove too much, but rather it went for low-hanging fruit.”
For one, Mr. Smith said little about the violent events of Jan. 6, leaving out vast amounts of evidence in the report by a House committee that separately investigated the matter. He focused more on a brazen plan to recruit false slates of electors from swing states and a pressure campaign on Vice President Mike Pence to block the congressional certification of Joseph R. Biden Jr.’s victory.
That choice dovetails with Mr. Smith’s decision not to charge Mr. Trump with inciting an insurrection or seditious conspiracy — potential charges the House committee recommended. By eschewing them, he avoided having the case focus on the inflammatory but occasionally ambiguous remarks Mr. Trump made to his supporters as they morphed into a mob, avoiding tough First Amendment objections that defense lawyers could raise.
For another, while Mr. Smith described six of Mr. Trump’s associates as co-conspirators, none were charged. It remains unclear whether some of them will eventually be indicted if they do not cooperate, or whether he intends to target only Mr. Trump so the case will move faster.
Among the charges Mr. Smith did bring against Mr. Trump, corrupt obstruction of an official proceeding is the most familiar in how it applies to the aftermath of the 2020 election. Already, hundreds of ordinary Jan. 6 rioters have been charged with it.
To date, most judges in Jan. 6 cases, at the district court and appeals court level, have upheld the use of the statute. But a few Trump-appointed judges have favored a more narrow interpretation, like limiting the law to situations in which people destroyed evidence or sought a benefit more concrete than having their preferred candidate win an election.
Mr. Trump, of course, would have personally benefited from staying in office, making that charge stronger against him than against the rioters. Still, a possible risk is if the Supreme Court soon takes up one of the rioter cases and then narrows the scope of the law in a way that would affect the case against Mr. Trump.
Proving Intent
Some commentators have argued in recent days that prosecutors must persuade the jury that Mr. Trump knew his voter fraud claims were false to prove corrupt intent. But that is oversimplified, several experts said.
To be sure, experts broadly agree that Mr. Smith will have an easier time winning a conviction if jurors are persuaded that Mr. Trump knew he was lying about everything. To that end, the indictment details how he “was notified repeatedly that his claims were untrue” and “deliberately disregarded the truth.”
“What you see in Trump — a guy who seems to inhabit his own fictional universe — is something you see in other fraud defendants,” said David Alan Sklansky, a Stanford University law professor. “It’s a common challenge in a fraud case to prove that at some level the defendant knew what he was telling people wasn’t true. The way you prove it is, in part, by showing that lots of people made clear to the defendant that what he was saying was baseless.”
Moreover, the indictment emphasizes several episodes in which Mr. Trump had firsthand knowledge that his statements were false. Prosecutors can use those instances of demonstrably knowing lies to urge jurors to infer that Mr. Trump knew he was lying about everything else, too.
The indictment, for example, recounts a taped call on Jan. 2 with Georgia’s secretary of state, Brad Raffensperger, in which Mr. Trump shared a series of conspiracy theories that he systematically debunked in detail. But on Twitter the next day, Mr. Trump “falsely claimed that the Georgia secretary of state had not addressed” the allegations.
And on Jan. 5, Mr. Pence told Mr. Trump that he had no lawful authority to alter or delay the counting of Mr. Biden’s electoral votes, but “hours later” Mr. Trump issued a statement through his campaign saying the opposite: “The vice president and I are in total agreement that the vice president has the power to act.”
In any case, several rioters have already argued that they did not have “corrupt intent” because they sincerely believed the election had been stolen. That has not worked: Judges have said that corrupt intent can be shown by engaging in other unlawful actions like trespassing, assaulting the police and destroying property.
“Belief that your actions are serving a greater good does not negate consciousness of wrongdoing,” Judge Royce C. Lamberth wrote last month.
Mr. Trump, of course, did not rampage through the Capitol. But the indictment accuses him of committing other crimes — the fraud and voter disenfranchisement conspiracies — based on wrongful conduct. It cites Mr. Trump’s bid to use fake electors in violation of the Electoral Count Act and his solicitation of fraud at the Justice Department and in Georgia, where he pressured Mr. Raffensperger to help him “find” 11,780 votes, enough to overcome Mr. Biden’s margin of victory.
“Whether he thinks he won or lost is relevant but not determinative,” said Paul Rosenzweig, a former prosecutor who worked on the independent counsel investigation into President Bill Clinton. “Trump could try to achieve vindicating his beliefs legally. The conspiracy is tied to the illegal means. So he has to say that he thought ‘finding’ 11,000 votes was legal, or that fake electors were legal. That is much harder to say with a straight face.”
Proving Mr. Trump’s intent will also be key to the charges of defrauding the government and disenfranchising voters. But it may be easier because those laws do not have the heightened standard of “corrupt” intent as the obstruction statute does.
Court rulings interpreting the statute that criminalizes defrauding the United States, for example, have established that evidence of deception or dishonesty is sufficient. In a 1924 Supreme Court ruling, Chief Justice William H. Taft wrote that it covers interference with a government function “by deceit, craft or trickery, or at least by means that are dishonest.” A 1989 appeals courts ruling said the dishonest actions need not be crimes in and of themselves.
This factor may help explain the indictment’s emphasis on the fake electors schemes in one state after another, a repetitive narrative that risks dullness: It would be hard to credibly argue that Mr. Trump and his co-conspirators thought the fake slates they submitted were real, and the indictment accuses them of other forms of trickery as well.
“Some fraudulent electors were tricked into participating based on the understanding that their votes would be used only if the defendant succeeded in outcome-determinative lawsuits within their state, which the defendant never did,” it said.
A Novel Charge
The inclusion of the charge involving a conspiracy to disenfranchise voters was a surprising development in Mr. Smith’s emerging strategy. Unlike the other charges, it had not been a major part of the public discussion of the investigation — for example, it was not among the charges recommended by the House Jan. 6 committee.
Congress enacted the law after the Civil War to provide a tool for federal prosecutors to go after Southern white people, including Ku Klux Klan members, who used terrorism to prevent formerly enslaved Black people from voting. But in the 20th century, the Supreme Court upheld a broadened use of the law to address election-fraud conspiracies. The idea is that any conspiracy to engineer dishonest election results victimizes all voters in an election.
“It was a good move to charge that statute, partly because that is really what this case really is about — depriving the people of the right to choose their president,” said Robert S. Litt, a former federal prosecutor and a top intelligence lawyer in the Obama administration.
That statute has mostly been used to address misconduct leading up to and during election, like bribing voters or stuffing ballot boxes, rather than misconduct after an election. Still, in 1933, an appeals court upheld its use in a case involving people who reported false totals from a voter tabulation machine.
It has never been used before in a conspiracy to use fake slates of Electoral College voters from multiple states to keep legitimate electors from being counted and thereby subvert the results of a presidential election — a situation that itself was unprecedented.
Mr. Trump’s lawyers have signaled they will argue that he had a First Amendment right to say whatever he wanted. Indeed, the indictment acknowledged that it was not illegal in and of itself for Mr. Trump to lie.
But in portraying Mr. Trump’s falsehoods as “integral to his criminal plans,” Mr. Smith suggested he would frame those public statements as contributing to unlawful actions and as evidence they were undertaken with bad intentions, not as crimes in and of themselves.
A related defense Mr. Trump may raise is the issue of “advice of counsel.” If a defendant relied in good faith on a lawyer who incorrectly informed him that doing something would be legal, a jury may decide he lacked criminal intent. But there are limits. Among them, the defendant must have told the lawyer all the relevant facts and the theory must be “reasonable.”
The indictment discusses how even though White House lawyers told Mr. Trump that Mr. Pence had no lawful authority to overturn Mr. Biden’s victory, an outside lawyer — John Eastman, described in the indictment as Co-Conspirator 2 and who separately faces disbarment proceedings — advised him that Mr. Pence could.
Several legal specialists agreed that Mr. Trump has an advice-of-counsel argument to make. But Samuel W. Buell, a Duke University law professor, said Mr. Smith was likely to try to rebut it by pointing to the repeated instances in which Mr. Trump’s White House legal advisers told him that Mr. Eastman was wrong.
“You have to have a genuine good-faith belief that the legal advice is legitimate and valid, not just ‘I’m going to keep running through as many lawyers as I can until one tells me something I want to hear, no matter how crazy and implausible it is,’” Mr. Buell said.
Charlie Savage is a Washington-based national security and legal policy correspondent. A recipient of the Pulitzer Prize, he previously worked at The Boston Globe and The Miami Herald. His most recent book is “Power Wars: The Relentless Rise of Presidential Authority and Secrecy.” More about Charlie Savage
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