Constitution Precludes Prison for Trump If He Retakes Office, Attorneys Say

Former President Donald Trump (C) sits in the courtroom with attorneys Todd Blanche (L) and Emil Bove at Manhattan Criminal Court in New York City on May 14, 2024. (Michael M. Santiago/Getty Images)

Should former President Donald Trump be sentenced to prison for a term beyond a possible inauguration in January 2025, it’s unlikely that he would be kept in prison after that point, attorneys indicated to The Epoch Times.

While some attorneys predict that the former president is unlikely to face prison time after his guilty verdict in May, given that he’s a first-time offender, the decision is ultimately on New York Supreme Court Justice Juan Merchan. He’s due to issue his decision on July 11—just four days before the Republican convention, where the GOP frontrunner is set to be formally nominated as presidential candidate.

If he is sentenced to prison, former President Trump will almost certainly appeal and request a delay to time served pending the review process. Should the former president win the election and the sentencing dispute extend past the inauguration date, courts may then have to confront issues surrounding the balance between federal and state authority.

“Two words: Supremacy clause,” Robert Ray, a former impeachment lawyer for former President Trump, told The Epoch Times via email.

“No state court is permitted to interfere with the Presidency of the United States. A sentence of imprisonment would have to await a time when the President is no longer in office.”

The supremacy clause of the Constitution reads: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Federal law is generally understood as trumping conflicting state law, although some powers are “reserved” for the states in the 10th Amendment. Given the difficulty of running the country from prison, it seems unlikely that former President Trump would be able to carry out his Article II duties if sentenced during a potential second term.

“Under the supremacy clause, I don’t think a state could prevent the President from exercising his constitutional powers,” South Texas College of Law professor Josh Blackman told The Epoch Times via email.

State Versus Federal Authority

Justice Merchan had earlier expressed reluctance toward the idea of incarcerating former President Trump while discussing his compliance with a gag order.

“Mr. Trump, it’s important you understand the last thing I want to do is put you in jail,” he said in May. “You are the former president of the United States and possibly the next president as well.”

Justice Merchan nonetheless said he was open to incarcerating the former president if he continued to violate his gag order. During sentencing, judges also may weigh factors such as the defendant’s conduct during trial and whether he or she shows any remorse. Former President Trump has repeatedly violated his gag order and denounced the case.

“The harder issue is if his jail sentence finishes before January 20,“ Mr. Blackman said. ”What happens if Judge Merchan sentences him to 1 day in prison? That could affect how the public sees him, but wouldn’t violate the Constitution.”

The charges that former President Trump faced were class E felonies, the lowest tier in the state of New York. Each count carries a maximum sentence of four years, although newspaper archives and court records have shown that defendants usually don’t receive prison time for the felony.

The balance of power between state and federal governments—also known as federalism—has come up several times in the former president’s ongoing legal battles. He’s facing criminal cases in state and federal courts, raising questions about how much he can mitigate the effects of what critics see as politicized prosecutions.

According to the Justice Department, the Constitution allows presidents to pardon individuals for federal but not state offenses. Attorneys have speculated that if former President Trump wins in November, his Justice Department could call off the federal prosecutions against him.

However, his guilty verdict in New York court and his case in Georgia each involve state-level charges from local prosecutors. It’s unclear how an appeal of sentencing would work its way through the courts, but arguments surrounding the supremacy clause could reach the nation’s highest court.

“I expect any sentence of imprisonment to be stayed pending appeal,” Mr. Ray told The Epoch Times via email. “I don’t think it’s likely that the [New York state] appellate court system is going to spell out the supremacy clause issue.”

He was referring to the possibility that a court would issue an opinion on how the supremacy clause precludes keeping presidents in state prison.

“It will require federal court intervention—possibly on direct appeal to the US Supreme Court since it’s a federal constitutional issue,” Mr. Ray said.

The Supreme Court has already addressed both federalism and presidential power in relation to former President Trump. However, only one of the rulings was released, focusing on whether states could disqualify federal candidates for office.

The other, which centered on presidential immunity, has yet to be announced but could delve more deeply into the scope of power that presidents enjoy. It’s unclear whether or how that opinion will bear on the sentencing dispute that’s expected to arise for the former president. A ruling is expected later this month.

The Associated Press contributed to this report.