If Donald Trump seems more desperate than most incumbents about the coming election, he may have good reason: Presidents do not typically have to worry about going to prison if they lose.
But Trump’s activities in recent years ― from paying hush money to a porn star to his claiming of a massive tax refund to obstructing an investigation into his campaign’s ties to Russia ― combined with a ticking statute of limitations clock potentially make Election Day far more consequential for him than it had been for his predecessors.
If Trump wins a second term, the time limit for starting a prosecution would run out in the next four years for a number of those activities, given Justice Department guidelines not to prosecute a sitting president. If Trump loses, indictments could quickly follow.
“Winning this election for him is not an option. It’s a necessity,” said Michael Cohen, Trump’s former personal lawyer and “fixer” who was sentenced for, among other charges, arranging illegal payments to keep women he’d had affairs with from speaking out before the 2016 election.
“There’s so much criminality here.”
- Nick Ackerman, former federal prosecutor
“He knows that if his tax returns are revealed that he and his children ― Don Jr., Ivanka, Eric ― and others will be charged with a host of criminal tax issues, which will not only cost him his freedom but his entire business,” Cohen said.
Neither the White House nor the Trump campaign responded to HuffPost queries for this report.
Trump was already described as “Individual-1” in Cohen’s prosecution. With a five-year statute of limitations for many federal crimes, the clock would run out on the hush money cases in late 2021.
Daniel Goldman, a former federal prosecutor who a year ago served as the lead lawyer in the House’s impeachment of Trump, said an ex-President Trump in 2021 could also face charges of bribery for his commutation of aide Roger Stone’s prison sentence as well as extortion charges for his attempts to coerce Ukraine into smearing his political rival, former Vice President Joe Biden. Trump was impeached for that but was permitted by Republicans in the Senate to remain in office.
“There’s so much criminality here,” said Nick Ackerman, a former federal prosecutor and, prior to that, a prosecutor in the task force created to investigate President Richard Nixon for the 1972 Watergate break-in and subsequent cover-up.
Any federal tax or bank fraud Trump may have committed in the first three years of his first term would likely be beyond the reach of prosecutors if they have to wait until the end of a second term in January 2025. A similar fate could befall Trump’s work to throttle special counsel Robert Mueller’s 2017-2019 investigation into Russia’s work to help Trump win the last presidential campaign.
“Again, it would lapse in a second term,” Ackerman said.
Though there is no prohibition on state-level prosecutions against a sitting president, a New York City district attorney told the US Supreme Court in a case involving Trump’s business records that they were cognisant of the time demands on a president.
“We’re mindful that as a state actor, our office cannot investigate a president for any official acts and that we cannot prosecute a president while in office,” said Carey Dunne, general counsel for the Manhattan district attorney’s office during oral arguments in May.
The possibility of prosecution and incarceration may explain Trump’s apparent mania in recent months, with repeated use and, at times, abuse of the powers of his office to aid his reelection.
In spring, a mailing to every household in the country from the federal Centers for Disease Control and Prevention about the coronavirus prominently included Trump’s name, even though he had spent months downplaying the virus, at one point even calling it a hoax. When the Treasury Department sent out $1,200 relief checks to Americans, those also included Trump’s name.
More recently, Trump has resisted warnings from public health experts to curtail large gatherings by resuming a frantic schedule of the campaign rallies that he believes are key to winning on November 3. He has again started downplaying the virus and insisting ― against all evidence ― that the pandemic is all but over.
And on Tuesday, he added to his baseless claims of “corruption” against Democratic opponent Biden by calling on Attorney General William Barr to open an investigation. “We’ve got to get the attorney general to act. He’s got to act, and he’s got to act fast,” Trump said during a lengthy interview with Fox News. “This is major corruption, and this has to be known about before the election.”
America has a history of treating presidential losers poorly, essentially stamping a giant capital “L” on their foreheads. Democrat Jimmy Carter was scorned, even by many Democrats, after losing in 1980 to Ronald Reagan. Republican Bob Dole, a longtime senator, was left to making self-deprecating television commercials after losing in 1996 to incumbent Bill Clinton.
But though they and others faced ignominy, they never had to worry about the possibility of years of imprisonment in the event of a loss.
The sole possible precedent in American politics is that of Republican Nixon, who resigned from office in 1974 after GOP senators made it clear they would not save him if articles of impeachment regarding his role in the Watergate scandal made it to their chamber. Gerald Ford, who had been appointed Nixon’s vice president in 1973 after the resignation of Spiro Agnew following his indictment for bribery, issued Nixon a blanket pardon just 30 days after assuming the presidency. “I cannot prolong the bad dreams that continue to reopen a chapter that is closed,” Ford said in a taped 10-minute Oval Office speech.
Similarly, just because Trump could face criminal charges does not mean he necessarily will.
Biden, who has run on the theme of bringing the country together and “healing” after Trump’s years in office, in May committed in an MSNBC interview not to pardon Trump but said he would not direct his attorney general to do anything one way or the other. “It is not something the president is entitled to do, to direct a prosecution or decide to drop a case,” Biden said.
Others, though, including Republicans, say it is critical to bringing back a sense of normalcy that a president as openly and regularly lawless as Trump be held to account.
“The integrity of our constitutional republic depends on holding our elected leaders accountable. Trump is no exception,” said Rick Tyler, a GOP consultant who worked on Texas Sen. Ted Cruz’s 2016 bid for president.
“We cannot reward criminal behaviour, by Trump or any of his miscreants in the Cabinet, White House or elsewhere,” agreed Norman Ornstein, with the conservative-leaning American Enterprise Institute.