Daniel Geary: Trump is bound for jail - or the White House and a constitutional crisis

If Donald Trump isn’t back in the White House, he will probably wind up in the jailhouse. On Tuesday, he was arraigned on 37 federal counts. He is charged with withholding classified documents obtained while he was president and obstructing justice by concealing these documents from authorities. The documents in question are highly significant and contained military secrets including nuclear ones.

When Trump has fought the law, he has usually won. He has been in and out of the courts his entire adult life. Indeed, in just the last three months he has been indicted for financial impropriety in paying hush money to adult film star Stormy Daniels and, in a civil court case, ordered to pay $5 million in damages to writer E Jean Carroll for sexually assaulting her and then slandering her as a liar. It is therefore easy to view this most recent indictment as yet another in a long line of legal struggles that has Trump typically escaped with minor consequences.

But this case is different. If Trump is convicted, he could face decades of jail time. The evidence against him is substantial. Federal prosecutors have an audio recording from 2021 in which he openly admits to his crimes. He reportedly remarked to an associate while referring to one document, “Secret. This is secret information. Look, look at this.” That certainly sounds like a smoking gun confession of wilfully possessing classified documents.

Most of the charges are under the Espionage Act, a law passed in 1917 to suppress opposition to the first World War. The law has typically been used in recent years to quell dissent against the American military-industrial complex. The government has targeted whistleblowers such as Chelsea Manning, who have made information available to the public that should not be secret in a truly democratic society. Trump’s motivations for concealing classified documents were surely not so noble. But why he did so will be a pivotal aspect of this case and could determine the harsh penalty he might face if convicted.

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For the past several years, Trump has faced scandal after scandal that would have sunk the career of any other politician. As president, he was twice tried for impeachment. The evidence against him was overwhelming in both cases and yet he was not removed from office. But impeachment is a political process. What he faces now is a judicial proceeding where evidence carries more weight. He cannot be saved by the slavish dedication of Republican lawmakers afraid of his loyal voters. Still, legal justice is never impartial. The presiding judge in this case, Aileen M Cannon*, is a Trump appointee who has already made some questionable rulings in his favour.

But even should he manage to escape conviction in this case, more indictments are on the horizon that carry the threat of substantial prison sentences. We should learn later this summer whether Trump will be charged with interfering in the 2020 presidential election in Georgia where he infamously asked the Secretary of State to “find” enough votes to carry the state for him.

In a sane world, a presidential candidate facing multiple criminal indictments would see their popularity plummet. But Trump’s standing in the Republican Party has only risen

Nearly a thousand people have been charged in relation to the January 6th, 2021 insurrection that Trump incited; a couple of dozen have already been sentenced to jail time. It seems probable that these cases are leading up to a prosecution of the former president himself. The US justice department appears to be following the modus operandi it uses against organised crime, where proceedings against underlings have culminated in charges against the boss.

In a sane world, a presidential candidate facing multiple criminal indictments would see their popularity plummet. But Trump’s standing in the Republican Party has only risen. Others in his party have rushed to defend the charges as politically motivated, undermining the judicial process before they even know what all the evidence is. Most Republican voters live in an alternate reality. It seems probable they will once again nominate Trump as their candidate. He no longer looks vulnerable to primary challenge as he did following the Republicans’ underwhelming performance in the 2022 midterm elections.

Joe Biden, however, must be pleased at the prospect of a rematch with Trump. The 2024 contest would play out against the background of multiple criminal proceedings against his opponent. In the general election, these would energise the Democratic base and hurt Trump’s chances with swing voters. With Trump getting all the attention, Biden’s weaknesses – his low approval ratings, mediocre abilities as a campaigner, and old age – would be neutralised. How many voters are going to prefer a candidate who faces jail time because the other guy looks a bit too old for the job?

Trump might be the underdog in 2024, but the significant chance that he could win poses an existential threat to American democracy. If a doctor told you that you had only a one in three chance of dying from cancer, it would hardly make you optimistic about your health.

For Trump, winning the presidency would be a get-out-of-jail-free card and is probably his best shot at escaping prison. As president, he could end any federal criminal proceedings against him. If convicted before the election, he could even attempt to pardon himself. Trump has also threatened to take vengeance against Joe Biden by initiating criminal proceedings against him. A Trump victory in 2024 would provoke a constitutional crisis the likes of which the US has never seen.

The American revolutionary Thomas Paine famously declared, “In America, the Law is King.” In a democracy rather than a monarchy, no one should be above the law. How the most recent Trump indictment plays out will be yet another test just how democratic the United States remains.

Daniel Geary is Mark Pigott Associate Professor in American History at Trinity College Dublin

* This article was amended on June 19th