How to jail a president

Of all the strange political things that may occur in what will be one of the stranger political years in history, one possibility stands out as the strangest. Donald Trump, who will almost certainly be the Republican presidential nominee, is also facing the possibility of a racketeering conviction that could send him to prison. So, how exactly do you jail a president?

Trump’s most fervent opponents may find themselves disappointed. No one’s going to toss the Donald into some American equivalent of the Black Hole of Calcutta. And as much as people might want to shut him up, no one is going to hold him captive in a bare, dark cell with a Hannibal Lecter mask over his face. On the other hand, Trump’s most fervent supporters could find themselves disappointed as well. Donald Trump probably won’t be a Cooler King, throwing a baseball against the wall like Steve McQueen in The Great Escape, waiting out his confinement so he can get back to delivering sick burns on social media. The reality is likely to be much blander and more prosaic.

To discuss the actual, if still somewhat improbable, circumstances that might meet Trump in prison, I contacted Carlton Larson, a constitutional scholar and the Martin Luther King Jr. professor of law at the University of California, Davis. “I suppose one thing that could happen,” he said, “given the oddness of the situation, is that a trial judge could hold off on imprisonment until all appeals are exhausted. That would allow a dodge.”

But no one will find that satisfying, Professor Larson said. If Trump does go to a real jail, it will be a minimum-security prison, given that he’s not charged as a violent criminal, as much as some people might wish that to be true. But as he’s a former president, he would require Secret Service protection, which is not only odd, since he’d already be under guard in prison, but difficult to manage physically and administratively. “When the Secret Service is protecting former presidents, I don’t think it’s primarily so the former president doesn’t get killed. It’s so they don’t get kidnapped and kept as hostage. That’s really problematic.”

We’re in somewhat uncharted territory, given that the United States has never jailed a former president. But there’s ample precedent for jailing former heads of state around the world. We’ve even jailed a former president of another country on American soil.

In 2007, the Times of London described life in a Miami prison for former Panamanian dictator Manuel Noriega, who was on the verge of ending his prison sentence because of “good behavior”: “He has spent the past seventeen years in an apartment-style cell nicknamed ‘the presidential suite.’ His accommodation includes two rooms, a television, a telephone and an exercise bike, Noriega having successfully argued that as a ‘prisoner of war’ he deserves special privileges.” It’s not freedom, but that doesn’t sound so bad.

Peru has convicted so many former presidents that it had to build a special prison to house them all. In 2022, Reuters reported that Peruvian leader Pedro Castillo, sent to jail after attempting to illegally dissolve Congress, ended up rooming near famously corrupt former president Alberto Fujimori, who wasn’t exactly moldering in a dungeon like the Count of Monte Cristo. “Fujimori, eighty-four, is the only convicted prisoner in a complex that was built for him at Diroes prior to his extradition from Chile in 2007 and subsequent trial. According to the National Penitentiary Institute (INPE), Fujimori has a cell with a bedroom, bathroom, study and access to a patio where he tends a garden.”

Current Brazilian president Lula da Silva is also former Brazilian president Lula da Silva — between terms he served time on corruption charges. The particulars of his sentence sound closer to what Trump’s detractors wish for him: Quartz reported that Lula was housed in “special quarters away from the general prison population” that included “two windows and a private bathroom with hot water,” and that “Lula will get similar treatment as general population prisoners when it comes to food — coffee with milk, bread and butter, for breakfast, and a hot lunch and dinner — and weekly family visits.”

The reality of Trump’s “imprisonment,” if it happens, would probably be close to what’s happened to convicted former European leaders. After a French court found former president Jacques Chirac guilty of corruption, they doled out a two-year “suspended sentence,” and no jail time, given that he was in his mid-eighties and ailing. In 2014, a court sentenced former Italian prime minister Silvio Berlusconi to a year of community service in a center for the elderly and disabled run by the Fondazione Sacra Familia just outside of Milan. The judge said Berlusconi, seventy-seven at the time, would work in the home “once a week and for a period of no less than four consecutive hours.” That’s a much lighter sentence than most of us would receive if a court convicted us of tax fraud.

Perhaps the dream scenario for Trump detractors would be a fate similar to that of two recent Illinois governors. George Ryan went to jail for six years in 2007, convicted on federal racketeering charges, first serving at a federal prison camp in Wisconsin and then moving to a medium-security facility in Indiana after the Wisconsin one stopped offering medical care to prisoners over the age of seventy.

Rod Blagojevich went to jail in 2012, reporting to a federal facility in Colorado, where he was the lead singer for a band called “the Jailhouse Rockers” — it dissolved when its lead guitarist, the “accomplished musician” Ernie B., was released. Blago would be in prison today, serving out his sentence for public corruption, if Donald Trump hadn’t commuted it in February 2020.

That brings up the most potentially humiliating, if physically comfortable, scenario for former president Trump. “If he’s found guilty of federal charges,” says Professor Larson, “President Biden could make a magnanimous gesture and commute the sentence. He’d say, ‘I’ll let you serve it at Mar-a-Lago with an ankle bracelet.’”

The worst punishment you could bestow upon Donald Trump, other than denying him access to cheeseburgers, would be to make him beholden to his political opponents. Says Professor Larson, “that would irritate him a lot.”

This article was originally published in The Spectator’s February 2024 World edition.