Two Men Running to Stay Out of Prison

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Written By Pinang Driod

Bill Clinton sometimes joked that the White House was “the crown jewel of the federal penitentiary system,” a sentiment shared by a few other presidents. In the 2024 presidential election, the winner will be remanded to the facility. But in a unique set of circumstances, the loser—whether it’s Donald Trump or Joe Biden—might also face incarceration, in a real federal prison.

Trump is up to his ears in legal troubles that he’d like to make disappear, and winning reelection would likely allow him to dispense with at least the federal cases against him. Former Representative Will Hurd made this point last summer, when he was running against Trump for the Republican nomination. “Donald Trump is not running for president to make America great again. Donald Trump is not running for president to represent the people that voted for him in 2016 and 2020,” Hurd told a crowd of Iowa Republicans. “Donald Trump is running to stay out of prison.”

As stump-speech material, this was not especially effective. Hurd has since dropped out of the Republican presidential primary, and Trump remains dominant. But Hurd’s point was good. Not only has reporting from Trump’s inner circle indicated that the fear of prosecution—and the power of a president to quash federal cases against him—has motivated Trump, but his defense attorneys effectively confirmed it in a filing this summer.

A candidate who is running to potentially stay out of prison is a dangerous candidate. He is not just running for his own ideology or pride; he’s running for his very freedom. That warps his incentives, making him more likely to employ demagogic tactics, less concerned about the way history might judge him, and more inclined to use every avenue possible to win the election—even if it means bending or breaking the law.

Yet Trump may not be alone. In recent weeks, the former president has been more explicit about his intention, if reelected, to prosecute Joe Biden. And that means both leading candidates could have their freedom at stake.

Outwardly, neither man is taking the threat seriously. Trump dismissed Hurd’s claim, saying, “If I weren’t running, I would have nobody coming after me. Or if I was losing by a lot, I would have nobody coming after me.” The Biden campaign did not reply to a request for comment on Trump’s recent remarks.

Whether Trump could really see the inside of a cell is a matter of intense debate even among legal experts, but this much is clear: The federal charges he faces are grave; some of the cases against him, particularly those related to refusing to hand over classified records, seem strong; and convictions on these charges can bring prison time.

As for Biden, the idea of a prosecution would seem absurd under any other circumstances. The president has not been charged with a crime, and long-running Republican investigations into his family have so far turned up plenty of proof of bad behavior by his son Hunter Biden, but no evidence of crimes by the president himself. Nonetheless, Trump has strongly suggested that he would concoct an excuse to indict and arrest Biden, as retaliation for what he sees as the political prosecution of himself. “They brought our country to a new level, and, but that allows—think of this—that allows us to do it to Biden, when he gets out,” he said at a rally in October. Later, in November, he sounded a similar theme: “They have done something that allows the next party—I mean, if somebody, if I happen to be president and I see somebody who’s doing well and beating me very badly, I say, ‘Go down and indict them.’”

Knowing how seriously to take Trump is impossible. His first term in office showed that he tries to follow through on some of his most dangerous rhetoric, but also that some of it is just talk. Trump didn’t attempt to lock up Hillary Clinton, despite the chants on the 2016 campaign trail, but in a recent interview with conservative media personality Glenn Beck, he said that he would jail rivals if he won: “The answer is you have no choice because they’re doing it to us.”

The United States has never seen an election like this, largely because Trump is a sui generis phenomenon. Richard Nixon left office under threat of prosecution, but was quickly pardoned by his successor, Gerald Ford. Bill Clinton struck an agreement the day before leaving office to avoid prosecution for lying under oath, though he would have been unlikely to face prison time.

But examples elsewhere in the world show the danger of having leaders who fear that leaving office might imperil their freedom: Such presidents may alter their country’s system to remove checks and balances and weaken the rule of law in order to protect themselves.

In Turkey, opponents of President Recep Tayyip Erdoğan have long claimed that he feels a need to stay in power lest he be locked up upon leaving office. Certainly, Erdoğan has faced several serious accusations of corruption over his many years in office. A 2010 WikiLeaks dump included diplomatic cables in which a U.S. ambassador to Turkey said that Erdoğan had Swiss bank accounts; Erdoğan threatened to sue. In 2014, leaked tapes appeared to capture him telling his son to dispose of fishy money. Erdoğan also successfully pressured the Trump administration to bring an end to the prosecution of a Turkish bank, which threatened to implicate Erdoğan himself.

Trump—who, like Erdoğan, made his fortune in real estate and construction—is a big fan of the Turkish president. When Turkey held a 2017 referendum that brought new powers to the presidency, in a vote marred by irregularities, critics condemned Trump for quickly congratulating Erdoğan.

Unlike Trump, however, Erdoğan has never faced a credible investigation. “I don’t think [Erdoğan’s] running to stay out of jail, probably because it’s unlikely, given how [he] has packed the courts and the prosecutors,” Steven Cook, a senior fellow who studies the Middle East at the Council on Foreign Relations, told me.

Another possible parallel is Egypt, where the past two presidents—Hosni Mubarak, toppled in the 2011 Arab Spring, and Mohamed Morsi—were removed from office and imprisoned. President Abdel Fattah al-Sisi is “determined that he won’t let that happen to him,” Cook said. To that end, Sisi has presided over a crackdown on freedoms and on criticism of his government.

When a leader acts out of this kind of fear, he has incentives to take actions that don’t just help himself but that can corrupt government systems well past his own term in office—or, for that matter, in prison. Taking either Turkey or Egypt as a model for governance would be a tragedy for the United States, and warning signs abound, such as Trump’s demonstrated hatred of rule of law. A system in which a candidate fears that electoral defeat might lead him to prison on flimsy pretenses is a sick one. A system in which a candidate who might rightfully belong in prison could win is an even sicker one.

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