Folks all over the broadcast and cable programs and in social media have been discussing various aspects of Trump’s latest indictment, what it means, what will happen if he’s convicted, whether he can be barred from office or have his benefits and Secret Service stripped away, etc.
Unfortunately, much of what is being said and written is inaccurate and sometimes just flat out false.
Because few things are more frustrating to me – a lawyer, Constitutional law expert, and former government official, who respects and cares about the law and justice – than to see people being misled and misinformed, I have written a basic primer to explain a few of the more discussed but misunderstood legal concepts involved in the Trump case.
Here are goes:
SECRET SERVICE: As a former president, Donald Trump is entitled by law to lifetime Secret Service protection. Even if he is convicted of a crime and Congress changes the law to make former presidents who are convicted of a crime ineligible, the new law will not apply to him and he will remain eligible for Secret Service protection for the rest of his life. The law can be changed to strip Secret Service protection from a former president who is convicted of a crime. BUT that can only be applied prospectively. Such a law cannot be applied retroactively to take away Secret Service protection from a president who already became entitled to it.
The reasoning is a little complicated, but it is based on a provision in the Constitution that bans “ex post facto” laws that criminalize behavior that was not a crime at the time the person engaged in it. That has been extended to also apply to actions that punish people by taking away entitlements that have already vested.
Therefore, because Donald Trump became entitled to receive lifetime Secret Service protection as soon as he became president and it became an immutable fact that he would eventually be a former president when there was no prohibition against a former president receiving Secret Service protection, any revision in the law that changes what a former president is entitled to cannot be applied to him. It can only be applied to former presidents who became eligible for Secret Service protection upon become president AFTER the law’s amendment. If Congress amended the law next week, it would not apply to Biden or any past president. It would only apply to the president who succeeds Biden and their successors.
Thus, no matter what people think or want or wish, Donald Trump is, without equivocation, entitled to continue having a Secret Service detail the rest of his life and that will not change even if he is convicted of a crime.
FELONY CONVICTION AS A BAR TO THE PRESIDENCY: Congress cannot pass a law prohibiting convicted felons from serving as president. That can only be done through a Constitutional amendment, which requires 2/3 vote in both the House and the Senate and ratification by 38 of the 50 states.
This is because eligibility for the presidency is set forth in the Constitution and can only be changed by amending the Constitution. Congress cannot add additional qualifications to the criteria delineated in the Constitution.
14th AMENDMENT BAN ON INSURRECTIONISTS: Section 3 of the 14th Amendment prohibiting federal officers who have engaged in insurrection from holding federal office does not apply to Donald Trump – or any other federal official to date – and cannot be used to keep Trump off of the ballot.
This is because of another section of the 14th Amendment – the Due Process Clause – which states that no person can be deprived of life, liberty or property without due process of law. A job or office is considered to be a property rights for the purposes of Constitutional analysis, and thus, before someone can be denied the right to hold a federal office that they are otherwise eligible for under the Constitution, they must be accorded full due process.
This means that a person cannot be barred from office simply because they are accused of engaging in or some people are certain they engaged in an insurrection. Due process requires a specific finding of such wrongdoing by an impartial process in which the accused has a full opportunity to confront their accusers and defend themselves. Without a specific judicial or administrative process put in place for this special circumstance, a court ruling – likely in the form of a criminal conviction – would have to be issued before the 14th Amendment bar could be invoked.
Donald Trump not only has not been convicted of engaging in an insurrection, he has not been charged with that crime. So the 14th Amendment prohibition cannot be applied to him and likely never will be.
SOLITARY CONFINEMENT: Holding Trump in solitary confinement, if he is convicted, would very likely be ruled unconstitutional and, thus, is not a logical alternative for incarceration should he be convicted.
Solitary confinement is an extraordinary measure used only in extraordinary circumstances. This is because such confinement has tremendous negative psychological impacts on prisoners and, thus, is used sparingly and only when there is solid, compelling evidence that the prisoner is a danger to himself or others, or has engaged in behavior that merits severe punishment. Putting a prisoner in solitary confinement because he requires special security by virtue of being a former president comes nowhere close to meeting that high bar. If Trump were ordered held in solitary confinement for that reason, the confinement would very likely violate the Eighth Amendment prohibition against cruel and unusual punishment.
TREASON: Donald Trump did not commit treason and has not been charged with doing so.
Treason is a very specific crime defined by the Constitution and statute: it occurs ONLY when a citizen “levies war against [the United States] or adheres to their enemies, giving them aid and comfort within the United States or elsewhere.”
Regardless what Donald Trump has done, he has not engaged in treason under the legal definition and has not been charged, and will not be charged with treason.