The Great American Shot-Caller – Can Donald Trump Run and Govern from Prison?

The Great American Shot-Caller – Can Donald Trump Run and Govern from Prison?

And Did His Ploy of Running for Office Successfully Derail or Delay the DOJ Investigation?

“I have been proven innocent for six years on everything – from fake impeachments to Mueller who found no collusion, and now I have to do it more?... It is not acceptable. It is so unfair. It is so political… I am not going to partake in it…

I announce and then they appoint a special prosecutor.” 

Donald Trump on November 16th, despite never being exonerated.

“Republicans will need to refuse to appropriate any funding to Merrick Garland’s Special Counsel and defund any part of the DOJ acting on behalf of the Democrat party as a taxpayer funded campaign arm for the Democrat’s 2024 presidential nominee.” 

Rep. Marjorie Taylor Greene (R-GA)

“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” 

United States Criminal Code, 18 USC §2383.

Suggesting that Donald Trump’s November 14th announcement of his formally running for president, combined with Joe Biden’s continuing statement of an “intent” to consider running for president did not look good, US Attorney General Merrick Garland appointed a “Special Counsel” to supervise all current possible federal criminal investigations of Donald Trump, hopefully to be perceived as a more neutral, non-partisan approach. He named Jack Smith, a former federal prosecutor, who currently works at The Hague, to begin “immediately.” A Harvard Law grad, Smith was previously the chief of the Dept. of Justice's (DOJ) Public Integrity Section, overseeing public corruption and elections-related cases, and began his career as a Manhattan prosecutor.

With statutory independence – even though any decision to indict Donald Trump would require Garland’s approval – Smith would helm the existing (and any added) DOJ staff attorneys looking at the numerous possible federal Trump crimes associated with taking classified documents, obstruction of Congress or justice, election interference and all sort of possible crimes arising from the 1/6/21 Capital insurrection… presumably to conclusion.

So let me answer the second question first: One view: YES. Trump got at least a delay. There is no outside deadline, and we are not sure if there will be a report. One more layer of supervision may not speed up the process. Garland made the DOJ look weak. The DOJ certainly was already fully empowered to proceed directly with the investigations, and if they were seeking general popular acceptance by creating “non-partisan” neutrality, that was an instant bust. No Republican would remotely accept that a Democratic AG’s appointment would be neutral and non-partisan. The elephants were instantly screaming that the radical left was amplifying a toxic witch hunt. Some in the slim GOP majority that will control the House hinted that an expected House committee investigation of Joe and Hunter Biden would now expand to include this “persecution” of Donald Trump. Summon Jack Smith? Some believe that the only delays are likely to come from congressional and judicial challenges to the legitimacy of Smith’s appointment, which are most likely to fail... except for the delaying part.

Ah, but there are many, including Trump himself, who think otherwise. Their answer would be NO. Now there is a clear leader, not distracted by other matters, with a track record of brutal efficiency. While Republicans yell and scream “bias,” Smith is profoundly apolitical. Trump, without enough time to have looked at Smith’s entire background, immediately called him a “Trump hater.” In remarks at Mar-a-Lago on November 18th, Trump labeled his appointment as “appalling” and a “horrendous abuse of power.” “This is a rigged deal,” he said, referring to Smith, whom he called the “super radical left special counsel,” telling Republicans to “fight” that appointment. Did the appointment strike a GOP nerve? He wasn’t too happy with the Supreme Court’s requiring him (on 11/22) to provide his tax returns to Congress, saying this about the Court he appointed: “The Supreme Court has lost its honor, prestige, and standing….”

But did Trump in fact buy a delay, perhaps even a reprieve from prosecution? Smith is working with the same DOJ legal teams that have been on Trump matters for a while and has pledged that his presence will not delay the process. If there is no Trump indictment within the first quarter of 2023, that may well augur in Trump’s favor. If there is… well…

Now for the more fun question that toplined this blog. Aside from the question of where would the Secret Service be stationed if “convicted felon” Trump is serving time in prison, can Trump be barred from running or governing (if elected) from prison? And can he pardon himself if elected? Certainly, a US president has no power to pardon state convictions (think Georgia or New York), and it is not entirely clear that he would have an absolute right to pardon himself from federal crimes, particularly insurrection. It would put the “engaged in insurrection or rebellion” or gave “aid or comfort” to our enemies language (banning holding federal office) of the subsequently passed 14th Amendment in direct conflict with the right of presidents to issue pardons (Article II, Section 2, Clause 1 of the basic Constitution). It would certainly be an interesting Supreme Court case of first impression. And if he could not hold federal office, Trump couldn’t be elected even to exercise that right to pardon himself?!

So yes, Trump could be barred from federal office based on the language of the 14th Amendment and even criminally prosecuted under the above-cited criminal statute if he were held to have engaged in, contributed to, aided or abetted or caused the Capitol insurrection. However, would the DOJ be willing to take the heat to do that? But assume the conviction is not for insurrection, rebellion or giving aid to our enemies, then…

Except for the above, there is nothing else in the Constitution that could keep Trump from running for President, since he was born in the United States, is certainly over 35 years of age and has resided in the United States for more than 14 years. That’s all folks! He can run. In fact, it has happened before. Writing for the November 17th Journal of the American Bar Association and citing the Business Insider, Debra Cassens Weiss’ research tells us: “two presidential candidates have already run for the office while in prison: Socialist candidate Eugene Debs, who was convicted of treason for opposing involvement in World War I, and Lyndon LaRouche, who was convicted of mail fraud in 1988.”

But if there is no criminal conviction of any kind, could Trump still be deemed to have engaged in insurrection, thus barring his ascension to the presidency by a civil action filed directly under the 14th Amendment. If the Congress were the complainant, that would probably create original jurisdiction with the US Supreme Court. Interesting, but given the current complexion of Congress, don’t hold your breath. Who else could file? The DOJ? Anyone else? Hmm. So, before this sounds like a litany of questions for a final exam in constitutional law, I think I will end this. I’ve already had enough fun.

I’m Peter Dekom, and you might think that the Democrats would actually prefer to face Trump in the 2024 presidential race, either as the GOP nominee or, better yet, an independent disruptor candidate!