Will former President Donald Trump actually go to jail? Well, it seems that a constitutional provision may mean he won’t spend time behind bars.
Since he was first indicted last year, people have wondered whether the 77-year-old (who is now the presumptive GOP presidential candidate) will really face jail time. Trump could receive a prison sentence as early as next month in the New York “hush money” case. He had his first meeting with a probation officer this week after being found guilty by a jury on 34 felony charges.
Most experts believe he won’t go to jail, but this case is just one of multiple legal challenges the former president faces as he seeks a second term in the White House. Already, his legal team has argued that presidential immunity applies to some of the allegations against him, and the Supreme Court is expected to weigh in on that subject this summer.
Additionally, a Trump attorney has argued that the supremacy clause would prevent at least one of the Trump trials from taking place until after his potential second term is completed.
“I believe that under the supremacy clause and his duties as president of the United States, this trial could not take place at all until after he left his term of office,” Steven Sadow, Trump’s attorney, told the Georgia judge overseeing the election interference case in December, according to USA Today.
Per the outlet, “now it’s even more certain that, should Trump win, he’ll be reaching for the supremacy clause as a lifeline.”
What is the supremacy clause?
Originally, the supremacy clause was a response to problems with the Articles of Confederation that governed the U.S. from 1781 to 1789. It established a “provision declaring federal law to be superior to state law,” according to the U.S. government.
“The core message of the Supremacy Clause is simple: the Constitution and federal laws (of the types listed in the first part of the Clause) take priority over any conflicting rules of state law,” explained the National Constitution Center nonprofit. “This principle is so familiar that we often take it for granted.”
USA Today said that Supreme Court Justice Samuel Alito already made an argument related to Trump based on the supremacy clause. It said Alito argued that “Georgia shouldn’t be able to interfere with the country,” with a trial and that New York shouldn’t be able to imprison Trump or restrict his travel.
Alito “described what he called a farcical scenario,” of a president sitting in Rikers Island or forced to give up presidential duties in order to attend trial dates in his 2020 argument related to Trump’s tax records. Most of the court agreed that the supremacy clause does not give a president absolute immunity from state criminal subpoenas.
Alito argued his farcical “untenable situation” might happen if the Supreme Court didn’t put enough restraints on the ability of state and local prosecutors to go after presidents, said USA Today. According to the outlet, if Trump becomes president again, he won’t be able to order the Justice Department to dismiss the Georgia charges. He also won’t be able to pardon himself for the New York conviction. Still, he’ll be able to make the case Alito did using the supremacy clause.
“There are no court precedents that address his situation,” said USA Today. Alex Reinert, a criminal law expert at the Benjamin N. Cardozo School of Law in New York City, said Trump “could have a legitimate argument,” but time will tell.