If a former president ends up in jail, will Secret Service agents have to be in there with him?
It’s a question the agency has never had to confront before but may have to come up with protocols for soon, as investigators in New York state and Georgia scrutinise Donald Trump’s actions for possible criminal prosecution.
“This would be unprecedented,” said Jeffrey Robinson, co-author of the book, Standing Next to History: An Agent’s Life Inside the Secret Service.
“It’s going to present some very interesting circumstances,” he said.
Secret Service officials declined to discuss the matter. “In order to maintain operational security, the US Secret Service does not comment on the means and methods used to conduct the agency’s protective operations,” a spokesperson wrote in a statement.
Trump political adviser Jason Miller did not respond to a HuffPost query about whether Trump would waive his right to Secret Service protection if he wound up in the custody of state or federal law enforcement.
One longtime Trump confidant, though, doubted that he would do that, and said he is more likely to ask for additional protection behind bars than he receives right now. “He would probably double up,” the adviser said on condition of anonymity. “It would be an interesting situation.”
The statute governing the protection of former presidents does not speak to the possibility of one of them winding up behind bars, saying only that the Secret Service is “to protect” them for the duration of their lifetimes. Since the agency was assigned the task of protecting presidents in 1902, and former presidents in 1965, none has found himself under criminal investigation – until Trump.
The 45th president is facing a probe of his family business’s taxes and bank loans by the New York attorney general and the Manhattan district attorney. Prosecutors in Fulton County, Georgia, meanwhile, are investigating his demand that Georgia elections officials “find” him 12,000 votes and his threat of criminal prosecution if they didn’t.
The two-year investigation by special counsel Robert Mueller also detailed multiple instances of obstruction of justice that Mueller testified Trump could be prosecuted for once he was out of office, although there is no indication that the Justice Department under President Joe Biden is pursuing that.
If Trump is, in fact, charged and eventually convicted, a sentencing hearing would be at the very least many months and possibly years away. In the nearer term, in the event charges are filed, there would be a hearing to set bail conditions to determine whether Trump would have to await trial behind bars.
Weighing in his favour, according to legal experts, is his advanced age and lack of criminal convictions. Weighing against him is his access to money – possibly including the $76 million he raised under false pretences from his supporters between the election and the January 6 insurrection – and his ownership of a jet, making him a flight risk.
Indeed, according to a top Trump campaign adviser who spoke on condition of anonymity, Trump was originally planning to be in Scotland at his golf resort near Glasgow at the time of Biden’s January 20 inauguration. That plan was nixed, though, when Scotland’s first minister announced that Trump could not come because of the ongoing pandemic.
Trump may also be viewed as a danger to the community because of his ability to rile up his followers into committing violence – as he did in the weeks ahead of January 6 with his constant lies that the election was being stolen from him, and his exhortations to his supporters at his rally that day. “You’ll never take back our country with weakness. You have to show strength, and you have to be strong,” he said. “We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.”
But either situation, pretrial incarceration or post-conviction imprisonment, would present an entirely new challenge to the Secret Service. Although the agency frequently works closely with federal and state law enforcement, it has never had to deal with one of its own “protectees” potentially being in their custody.
“There is no precedent for this, so no one knows for certain the answer, and arguably President Biden gets final say over the extent of any USSS protection for his predecessor,” said Bradley Moss, a lawyer with national security expertise. “That said, it is likely former President Trump would maintain protection even if convicted and incarcerated due to his special status.”
Robinson, though, said it defied common sense for an incarcerated person, even an ex-president, to get special protection. “You’re not going to put Secret Service agents in prison to protect a guy who’s already being protected by the prison,” he said.