Being elected president is truly a get out of prison for Donald Trump, but the bigger concern should be what this means for the rule of law in this country. On Friday, New York Judge Juan M. Merchan upheld Trump's 34 convictions for falsifying business records. Merchan set sentencing for Friday, January 10, and indicated that he would likely take the highly unusual step of serving Trump's sentence unconditionally. In plain language, this means that Trump will face no legal consequences from his conviction – no prison time, no probation, no fine.
Trump's lawyers are trying to block even the announced unconditional dismissal while they file an appeal. But realistically, Merchan had no alternative.
A prison sentence is incompatible with Trump's term as President of the United States. The appeals courts would certainly overturn a prison sentence because they believe that being elected president constitutionally precludes a state's ability to interfere with sentencing through a prison sentence. Trump could not carry out his constitutional duties as president from a prison cell in New York. Nor would it make sense for a state judge to put the president on probation and monitor his actions under threat of revocation and imprisonment.
Trump faces up to four years in prison for the crimes for which he was convicted in New York. A New York Times study found that of 30 convictions for falsifying business records in Manhattan over the past decade, no other defendant received an unconditional release. All but five received prison sentences, prison sentences, probation and fines; Some who agreed to plea agreements received sentences with certain conditions, such as paying compensation or performing community service.
In fact, it was Michael Cohen who arranged for the hush money to be paid that led to Trump's conviction sentenced to three years in prison and served 13 months in custody. Trump, who the jury found orchestrated and was responsible for approving the payments, will never spend a day in prison.
But that's just part of Trump's get-out-of-jail-free advantage. He was indicted in the U.S. District Court for the District of Columbia for his attempt to undermine the results of the 2020 presidential election. Had Trump lost in November, he would have been tried and faced prison time if convicted. But that The charges were dismissed after Trump was elected under a Justice Department rule that a sitting president cannot be prosecuted.
This was also the basis for the dismissal of charges against Trump in federal court in Florida for improper handling of classified documents. The allegations against him were serious: tampering with evidence, intentionally withholding national defense information and lying to investigators. If convicted, these charges would also likely have resulted in significant prison time.
And it must be remembered that the Supreme Court last summer in Trump vs. the United Statesruled that Trump could not be prosecuted for anything he committed using official powers granted to the president by the Constitution or a law. This led to some charges against him being dropped. The court's decision provides protection for all official acts committed during his first term, and he takes office knowing that he will face no possibility of prosecution for illegal acts in the next four years.
None of this is reconcilable with the most basic notion of the rule of law, the essence of which is that no one, not even a president or former president, is above the law. It is reflected in the idea, expressed since the beginning of American history, that we are “a land of laws, not of men.” The last thing the framers of the Constitution wanted was to create a president who could not be held accountable for breaking the law.
Trump continues to face civil liability for some of his past conduct. Last week, a federal appeals court affirmed a $5 million verdict against Trump for his sexual assault on E. Jean Carroll. Another jury awarded Carroll $83.3 million against Trump for defamation. This judgment is now on appeal. Trump also appeals a $355 million verdict for business fraud against him and his company.
But none of these civil lawsuits are about the crimes he committed or was accused of. There also seems to be no way he could ever be punished for these crimes.
The attack on the rule of law is also reflected in Trump's promise to pardon those involved in the attack on the Capitol on January 6, 2021. So far, more than 1,500 people have been charged with federal crimes related to January 6th. Most of these were offenses such as trespassing, but hundreds have already been charged have pleaded guilty or been convicted of assault or other crimes. Everyone's behavior was illegal and unacceptable in a democracy, yet they could be exempt from criminal liability.
It is perhaps too easy to ignore that this situation is unique in the history of our Republic. A convicted felon has never become president. Never before has being elected president meant that criminal charges have been dismissed. It violates the core of the rule of law that being elected president could be a release from prison.
Erwin Chemerinsky, an opinion writer, is dean of UC Berkeley Law School.