Despite indictment after indictment, Donald Trump has managed to stay in the race for the presidency with a commanding lead and now with the race closing in on a one-on-one matchup between Trump and President Biden, many are wondering what happens if or when those indictments become convictions.
Can Trump stay in the race if he's in jail?
If so, can he win?
And if yes, would he be able to split his time between the Oval Office and a square cell?
These are questions that I’m going to tackle as we unpack the legal, political and historical considerations which could determine what a Trump 2024 win could look like.
Trump’s charges
Trump currently has criminal convictions pending against him in the states of New York and Georgia as well as the federal courts of Florida and Washington DC.
Each of these cases has a substantial possibility of garnering Trump many years in prison.
For simplicity’s sake, I'll focus on the federal charges against Trump as these are the most serious charges - being the January 6th related charges in DC and the classified documents related charges in Florida.
In those Federal cases, Trump could receive up to a staggering 505 years in prison.
If given the maximum sentence on all charges, while it's unlikely for any court to hand down the maximum sentence on every single count, it's important to remember Trump is 77 years old meaning anything over about 9 or 10 years of jail time and it's effectively a statistical life sentence.
But which case is more likely to put Trump behind bars before the election?
Well, that's actually quite hard to say.
Recently the trial date for the DC case (originally set for March 4th) has been pushed back to an undetermined date.
Now this was in order to allow a higher appeals court to determine if Trump is constitutionally able to invoke presidential immunity as an offense to these charges.
Similarly, the May 20th trial date for Trump's Florida case looks like it would push back in order to allow the court to consider Trump's claim of presidential immunity there as well.
Regardless of which charges end up being the first to catch up with Trump though, the possibility that Trump will be tried, convicted and sentenced to some prison time in 2024 or early 2025 looks high given the available evidence.
How does this impact the race?
So how does this impact the presidential race?
Well, that will depend on whether he's in jail before or after the Republican National Convention where the party officially selects its nominee.
Set to take place between July 15th and 18th, this meeting of Republican party bosses is the last chance for Trump to be kicked off the ballot before the general election since having a major party's prospective nominee under state and federal indictment is completely unprecedented.
What could happen at a convention where Trump is about to be or already behind bars is anyone's guess.
Republican challenger to Trump, Nikki Haley has vowed to stay in the race until the last person votes likely exactly for this reason.
Her hope being that if Trump does end up going to jail before the November general election, then maybe she can convince enough delegates to switch from Trump to supporting her.
However, given their ideological differences, Haley's plan is certainly a long shot.
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Assuming Trump's Republican primary victory goes off without a hitch though, would he be allowed to run in the general election from a federal jail cell?
Surprisingly, yes!
He'd have no issue doing that legally and there's even historical precedent for it.
In 1920, Socialist Party nominee Eugene Debs ran from a jail cell after he was convicted of sedition for speaking out against the WW1-era Espionage Act and despite being in jail, he still came in third amassing 3.4% of the vote.
Now this was all possible for Debs and will be for Trump because the Constitution only says that in order to run for president, you must be a natural born citizen who is 35 years or older and has lived in the United States for at least 14 years.
So, Trump can run for the presidency but could he win even after being convicted?
Well, while nothing is set in stone, the odds of trump winning post-conviction do appear low.
Back in January, Bloomberg and Morning Consult polled the key swing states of Arizona, Michigan, Nevada, North Carolina, Pennsylvania and Wisconsin on this exact question.
The results showed that 53% of voters in those states would be unwilling to vote for Trump if he was convicted of a crime.
Further 55% of voters said they'd be unwilling to vote for him if he was in prison.
More critically, this poll showed that a full 25% of Trump 2016 voters in these states would be unwilling to vote for Trump in 2024.
Assuming these numbers hold through to November, the math in these swing states is a huge uphill battle for a convicted Trump to fight against.
A battle made all the more difficult by the fact that, well, he's in jail – unable to hit the campaign trail and connect with voters.
Trump though hasn't been shy on playing on his impending conviction for political points.
For example, with the recent death in prison of Russian opposition figure Alexei Navalny, Trump took to social media to compare himself to the Putin critic.
This attempt to paint him as politically persecuted forms part of a wider strategy to use his judicial troubles as campaign fodder going so far as to plaster his mug shot on all manner of merchandise from T-shirts to NFTs.
What happens if Trump wins?
It remains to be seen whether this strategy can pay off but let's say that Trump can pull off another 2016 style upset - this time from prison.
Does he stand any shot of staying in office and getting himself out of jail?
Potentially a newly elected president Trump may be able to use the presidential power to pardon all federal offenses to get himself out of federal prison.
However, no one has ever tried that before so it's unclear how such a move would be seen by courts.
There's also little evidence indicating the drafters of the Constitution ever really considered the issue of a presidential self-pardon.
The question remains unanswered.
One of the only hints we have to the legality of a presidential self- pardon is a 1974 memo from the justice department.
The memo indicated that the legal principes stating no one may be a judge in his own case would mean that a self-pardon would not be legal.
But the memo also left open the possibility of the president using the 25th Amendment to transfer his power to the vice president who would pardon the president and transfer back the powers of the presidency.
Now if something like this were to happen, it's anyone's guess how Congress would react.
They could impeach both Trump and his VP if they tried this scheme but only if enough Republicans got on board to convict them in the Senate.
Ultimately the use of a pardon in the case of a Trump win from prison would only add to the multiplying number of unprecedented situations that could arise from a Trump presidency.