Despite facing multiple criminal indictments, former and future President Donald Trump will not face jail time or a jury trial while he is in office.
The Biden administration, especially Attorney General Merrick Garland, has been criticized for delaying the initiation of investigations and prosecutions of serious offenses allegedly committed by Trump, which some view as a blatant case of neglect and inaction.
This is due to a longstanding U.S. Department of Justice (DOJ) policy, affirmed by legal precedents and constitutional considerations, that prohibits the prosecution of a sitting president.
That means the only punishment for Trump’s attempted coup d’etat, theft of government documents, and myriad other offenses, will be that two of his golf courses in New Jersey were denied liquor license renewals following his conviction on 34 felonies in New York.
Trump’s legal battles have sparked significant debate about the limits of presidential accountability, but as it stands, there are significant legal and institutional barriers that prevent any criminal prosecution of Trump during his presidency.
The DOJ’s policy prohibiting the prosecution of a sitting president is rooted in legal opinions issued by the Office of Legal Counsel (OLC) dating back to the Nixon administration.
In a 1973 memo, the OLC argued that the president’s unique role as the head of the executive branch prevents him from being subjected to criminal prosecution while in office.
This opinion was reaffirmed in 2000, with the DOJ asserting that criminal proceedings against a sitting president would interfere with the executive branch’s ability to perform its constitutional duties.
This principle has been widely accepted, even though the U.S. Constitution does not explicitly address whether a sitting president can be indicted or prosecuted.
The prevailing interpretation is that the remedy for presidential misconduct should be impeachment, not criminal prosecution. Impeachment allows the legislative branch to address alleged abuses of power, with the potential for removal from office, while criminal charges are reserved for after a president leaves office.
Trump’s legal troubles include several high-profile cases, including a federal investigation into his role in attempting to overturn the 2020 election results.
In 2023, Special Counsel Jack Smith filed charges against Trump for allegedly conspiring to defraud the United States and obstruct an official proceeding. However, these charges were dismissed in light of the DOJ policy regarding presidential immunity.
Smith filed a six-page submission to the court, stating that the DOJ had determined that the constitutional prohibition on the indictment and prosecution of a sitting president applied to Trump’s case.
The submission clarified that while the case had merit, it could not proceed while Trump was president-elect. The dismissal was made “without prejudice,” meaning that the charges could potentially be revived after Trump leaves office.
In a separate case regarding the mishandling of classified documents, Judge Aileen Cannon dismissed the charges in July 2023, citing constitutional grounds and the controversial appointment of Special Counsel Smith.
While Smith has appealed that decision, the legal path to prosecuting Trump while he is in office remains blocked by the same principles of presidential immunity.
Trump’s conviction in May 2024 on 34 counts of falsifying business records concerning hush money payments to adult film actress Stormy Daniels further complicates the situation.
While Trump could theoretically face prison time for this conviction, the issue of sentencing is currently unresolved, with a Manhattan judge postponing his sentencing indefinitely. This case is subject to appeal, and Trump’s legal team is exploring options to dismiss the charges.
Trump also faces state charges in Georgia, where he is accused of attempting to interfere with the 2020 election results. The case, based on state racketeering laws, could continue even if Trump is in office, but legal experts say it is unlikely that the case would progress during his presidency.
State-level prosecutions are not subject to the same immunity protections as federal cases, but it would be politically and legally challenging to advance such a case while Trump holds the nation’s highest office.
In addition to criminal cases, Trump is involved in several civil lawsuits, including a defamation case brought by E. Jean Carroll and a fraud lawsuit filed by New York Attorney General Letitia James.
These cases will continue, and although Trump could face financial penalties, they do not involve any possibility of jail time.
One significant question is whether Trump might attempt to pardon himself if convicted of any criminal charges.
The U.S. Constitution grants the president broad pardon powers, but it is unclear whether this extends to self-pardons. Legal experts are divided on this issue, and any attempt to pardon himself would likely lead to a legal challenge, possibly culminating in a Supreme Court decision.
Although Trump faces multiple legal battles, the most immediate consequence of his re-election is that he will not face jail time or criminal prosecution while in office. The DOJ policy, combined with the constitutional protections afforded to presidents, ensures that no federal criminal case can move forward until Trump leaves office.
However, legal experts note that after his term ends, Trump could face prosecution for any crimes committed while in office. The dismissal of federal cases “without prejudice” leaves open the possibility of future charges, and civil cases will continue to be litigated.
Trump has celebrated the dismissal of criminal cases as a victory, framing the legal challenges as politically motivated attacks on his presidency. On social media platforms, he characterized the prosecutions as “empty and lawless,” claiming that they were part of a “political hijacking” designed to undermine his 2024 campaign.
His legal team’s successful maneuvering to delay criminal proceedings, combined with his return to the White House, means that Trump remains largely insulated from the legal consequences of his actions—at least for the duration of his term.
With new appointments to key Justice Department roles, Trump’s administration will likely continue to shape the legal landscape in ways that favor his interests.
In conclusion, while Trump faces many serious criminal charges, the legal and constitutional frameworks in place mean he will not face a jury or jail time as long as he remains in office.
Any efforts to prosecute him will have to wait until after his term ends, and even then, the political and legal challenges to holding a former president accountable may continue for years to come.