Could Trump serve as president from a Federal penitentiary?

Get the Point!

So, several of my close kin and friends have asked me the following questions in recent weeks: 

1. "Can former President Donald Trump run for President if he becomes a convicted felon?"

ans.: Yes, he absolutely can run for President as I will discuss below!

2. "If President Trump becomes a convicted felon and is sentenced to prison, but still wins the Electoral College vote, can he serve as President?"

ans.: It depends!

As to the first question, lest we forget that in 1920, Eugene V. Debs, a socialist political firebrand at the turn and first few decades of the 20th Century, ran for President of the United States while incarcerated at the Atlanta Federal Penitentiary!

Eugene V. Debs

In 1917, Debs was an outspoken opponent of America's entry into World War I and over the next year and a half, delivered speeches and wrote editorials that were harshly critical of then President Woodrow Wilson's administration. More pertinently, Debs was against the military draft and after he spoke out against forced conscription during a speech in Canton, Ohio on June 16, 1918, he was charged and convicted of sedition!

Debs was subsequently sentenced to 10 years imprisonment and forfeiture of his right to vote in September of 1918, and was serving that time when he decided to run for president in 1920. 

While Republican Warren G. Harding ultimately defeated Democrat James Cox in November of 1920, Debs—the Socialist candidate—actually won 914,191 votes—from correctional facilities! The following year, President Harding commuted his former rival’s sentence to time served and released Debs just shy of serving three full years behind bars. 

As you may recall from your old Civics classes, the U.S. Constitution only requires that a candidate for President of the United States is 35-years old, a natural born citizen, and have lived continuously in the U.S. for 14 years—that's it! Thus, even a convicted felon whose civil rights have yet to be restored is eligible to become the most powerful political figure in the nation!

As to the second question, “if Donald Trump happens to be convicted and is sentenced to prison, but still eventually wins the Electoral College vote, could he serve as President of the United States,” that answer requires the response that law students learn during the first week of law school: "it depends!"

Trump in a NYC court earlier this year…

First, I caution all of my readers to remember that every single person accused of a criminal offense is deemed innocent "unless, and until, proven guilty in a court of law." Yes, that includes Donald Trump, no matter how much you or I may disapprove of his politics or personality. 

Second, it is important to remember that indictments are only allegations, and that the prosecutors who will try these cases have a burden to produce competent evidence that removes the presumption of innocence.

To that end, while much of the known evidence against Trump has been in the public sphere for years, whether it was hush money to porn stars, his bragging on tape about taking documents that should have remained in Washington, or even his loudmouthed exhortations for his followers to proceed to the Capitol and stop the vote certification on January 6, 2021, please remember that Trump is a 78-year old man whose insouciance will be blamed on his age and subjective belief that he was following advice of his legal counsel in each instance. 

Yes, I know that sounds a whole lot like the Nazi High Command swearing that they were simply "following Hitler's orders" during their war crimes trials at Nuremberg following World War II, but having watched this circus from the beginning, Trump most certainly had lawyers like Michael Cohen, Rudy Giuliani, and many others who were willing to tell him what he wanted to hear, thus, the "blame the lawyers" defense that soon will be front and center during his trials.  

But as I wrote on Facebook early this morning, the problem for Trump's current set of lawyers is that to proffer the "blame prior counsel" defense, one Donald John Trump must take the witness stand and testify! Trump being Trump, whether you like him or loathe him, most folks with common sense can agree that the man lacks self-control, is easily agitated, arrogant, temperamental, and will come totally unhinged during multiple hours or days of rigid cross-examination by prosecutors. 

On this last point, I remember a statutory rape trial that I handled two decades ago where everyone in the courtroom, including the presiding Judge Charlie Francis, sensed that the jury was going to acquit my client, but said client insisted (over my strenuous objection) that he wanted to take the witness stand because the 14-year old child victim had testified that his penis was "not much larger than a q-tip cotton squab" and that she "really didn't feel anything" and "wasn't quite sure that she had been penetrated." Now, because each defendant has the sole right to decide whether to testify or not in state and federal court, my client took the stand and after losing his temper and self control during the prosecutor’s cross, the jury convicted him in less than an hour. The very next day, I saw Judge Francis walking down the hallways and after chuckling loudly, he said, "Mr. Hobbs, it sure seemed to me that you had reasonable doubt for most of the trial until your client took the stand and removed ALL doubt that he did it!"

Indeed...

Trump's defense team has their work cutout for them in similar fashion and yet, something deep in my mind tells me that even if he is convicted in one or more cases, that Trump will not be sentenced to prison. Now, don't shoot the messenger, what I mean is that some of the factors that Trump's judges will be forced to take into account include his age, his diminishing mental capacity, and the logistics of having Secret Service Agents having to sit in prison, too, as he has such protection for life!

I could be wrong, and the egalitarian part of me hopes that if Trump is found guilty, that he serves the same sentence that any other citizen would serve under the circumstances. But let's be real, Trump is no regular citizen and the very fact that at three indictments and counting that he is still ahead of his closest rival, Ron DeSantis, by over 30 percentage points, shows that when it comes to popularity despite being criminally indicted, that the 45th president, so far, has proven to be the "Teflon Don."

Stay tuned!