Spencer Platt / Getty Images
On Monday night, Donald Trump was indicted for the fourth time in less than five months by a grand jury in Fulton County, Georgia, where he and 18 others were charged with participating in an illegal scheme to overturn the results of the 2020 election. Prosecutors accused Trump of working with the other defendants to mastermind a “criminal enterprise” to change the outcome of the election.
That means the former president — and leading contender for the 2024 GOP nomination — is heading into the primary season with nearly 100 criminal charges in four different jurisdictions. His three previous indictments include charges of: falsifying business records in an attempt to undermine the integrity of the 2016 election in New York; illegally retaining classified documents and obstructing efforts to get them back in Florida; defrauding the U.S. in connection with his efforts to overturn the 2020 election in Washington, D.C. Two of the trials are already scheduled for next year, and prosecutors in the 2020 election case have requested a trial starting on Jan. 2, although the judge has to agree to the schedule. The Fulton County District Attorney, Fani Willis, said at a press conference on Monday night that she’ll seek a trial within the next six months.
It’s possible, of course, that the trials will be delayed, or that Trump will be acquitted. But if he’s convicted of felony charges in any of the cases before Nov. 5, 2024, the country will be plunged into truly uncharted territory — particularly if Trump is able to clinch the GOP nomination before this theoretical conviction happens.
Even if Trump is convicted of a crime, he can keep running for president (although he probably couldn’t vote in his home state of Florida). The requirements for serving as president are simple — a person has to be 35 years old, a natural-born citizen of the United States and a resident of the U.S. for at least 14 years. The Constitution doesn’t say anything about a criminal record or prison sentence standing in the way.
In fact, Trump wouldn’t be the first person with a felony conviction to run. In 1920, socialist Eugene V. Debs famously won nearly a million votes from the prison cell where he was serving a 10-year sentence for speaking out against the draft. Conspiracy theorist Lyndon LaRouche ran multiple campaigns for president after he was convicted for mail fraud and conspiracy to defraud the Internal Revenue Service — one, like Debs, from behind bars — while felon Keith Judd won 41 percent of the Democratic presidential primary vote in West Virginia in 2012. Trump wouldn’t even be the only candidate with a conviction to run this year: Joe Maldonado-Passage, a reality TV personality known as “Joe Exotic” who was convicted of attempted murder and animal abuse, declared his 2024 candidacy in March.
The more pressing question for Trump’s campaign, then, is whether he would have to join Debs, LaRouche and Maldonado-Passage in running from behind bars. For that to happen, Trump would have to be sentenced to prison time to begin with. It’s very possible, for example, that the case in New York — involving hush-money payments to an adult film actress — wouldn’t result in a prison sentence even if Trump was convicted. “I think it’s the least likely case for him to be sentenced to jail time if he’s convicted,” said Cheryl Bader, a law professor who runs the criminal defense clinic at Fordham University. That’s because falsifying business records is usually charged as a misdemeanor: In Trump’s case, the charges were elevated to a felony based on the novel theory that the records were falsified in service of federal and state election crimes. Because of that, she said, “it’s just a little bit more of a stretch that it deserves a sentence of incarceration.”
The federal cases in Florida and Washington, D.C., both involve charges that carry significant maximum sentences, but judges rarely impose the maximum, and there’s no reason to think Trump’s case would be different. If he is convicted and sentenced to prison time in either case, he’s almost certain to appeal — and it would be up to the judge to decide whether Trump could stay free during that time. “Under federal law, it is not uncommon that defendants are released pending appeal,” said David Sklansky, a law professor who co-directs the criminal justice center at Stanford Law School.
When making the decision about whether to release a defendant while their appeal moves forward, federal judges are supposed to take a few things into account, including whether the person is likely to flee or be a danger to others, or if the issues on appeal are substantial enough that they could result in a conviction or sentence being thrown out. The judge could also impose conditions — like travel limitations — that mitigate concerns about the risk of flight or the risk to other people. But perhaps most crucially for Trump, the judge does not have to take considerations like the potential impact on his campaign into account. “He’s not different from any other defendant,” Sklansky said. The federal judge handling Trump’s case in Washington, D.C., has already made clear that she’ll proceed normally, despite the abnormal circumstances. “The existence of a political campaign is not going to have a bearing” on her decision-making, she said in an early hearing last week.
And what about Georgia? Elizabeth Taxel, a law professor at the University of Georgia who specializes in criminal law, says that if Trump is convicted in Georgia and given a sentence of more than five years, he wouldn’t be eligible for release on bail while he appealed. (Notably, unlike most of the crimes Trump is charged with, Georgia’s racketeering law carries a minimum of five years, although the judge could impose a fine instead.) If he’s convicted and sentenced to less than five years, the judge would evaluate similar factors as in a federal context. But Taxel was skeptical that the Georgia case will be concluded by the time the 2024 election happens, particularly since there are so many other people charged in the case, and Willis has said she’ll seek to prosecute them together, which could make for a very long trial. “The Fulton County court system is experiencing a pretty oppressive backlog,” she said. “Plus you have the logistical challenges of scheduling with multiple lawyers and defendants, and the litany of pre-trial issues that are going to be litigated. I think the likelihood of a verdict by November 2024 is very low.”
Trump, for his part, has promised to keep running even if he’s incarcerated. But a high-profile presidential candidate — much less one of the major parties’ nominees — running from prison would reshape the race in big and unpredictable ways. And that the political context would be hard for any judge to ignore. “I can see a judge being cognizant of our current divisive political climate [and] not wanting to appear to be placing a thumb on the scale during a political campaign by incarcerating a leading candidate,” Bader said. On the other hand, judges will also want to avoid the perception that Trump is getting special treatment because of his status as former president or presidential candidate. “In New York, most people appealing convictions and sentences of incarceration are not doing so from the comfort of their own home — or from their jets going from one campaign stop to the next,” she said.
