Should Trump go to jail? The 2024 election could become a referendum on that question

Former US President Donald Trump will appear in federal court in Washington on Friday (NZ time) to face the latest charges. This time for his efforts to overturn the 2020 election and block the transfer of presidential power. Photo / AP

The 2024 election will determine whether Donald Trump returns to the White House. It could also decide if he’ll face time behind bars.

For Trump, who’s now facing his third criminal indictment — this time for his efforts to overturn the 2020 election and block the transfer of presidential power — winning is about more than ego, redemption, score-settling or the future of the country.

“This election may very well be about Donald Trump’s personal freedom,” said Ari Fleischer, a longtime Republican strategist. “It’s not an exaggeration to say, if convicted, he could be sentenced to prison unless he wins and he uses the levers of justice to reverse it or stop it or drop it.”

The deeply personal stakes for Trump add to what is already an election unlike any other in modern history. It’s now not only a debate over the country’s challenges but a partisan fight over whether the 77-year-old former president and GOP frontrunner should spend time in prison. Putting that issue out front, Trump ally Rep. Marjorie Taylor Greene, R-Ga., tweeted that she “will still vote for Trump even if he’s in jail.”

Critics have long alleged that Trump’s fear of prosecution was a chief motivator for his decision to mount another campaign. While Trump denies that — insisting that charges never would have been brought had he decided against running — the new indictment ensures his campaign and legal issues are now intertwined.

The 2024 election will determine whether Trump returns to the White House. It could also decide whether he might face time behind bars. Photo / AP

“The legal messaging is the political messaging and the political messaging is the legal messaging,” Trump campaign spokesman Steven Cheung said of the new reality. “It’s part of what we’re running on. Trump has made the legal issues a big focus of his campaign and from our standpoint, it’s messaging that works.”

The combined 78 state and federal charges against Trump are already dominating his stump speeches as he seeks to portray himself as the victim of a politicised Justice Department bent on damaging the prospects of President Joe Biden’s chief political rival. At his rallies, he tries to frame the charges as not just an attack on him, but his supporters.

“They’re not indicting me, they’re indicting you,” he told the crowd at a weekend rally in Erie, Pennsylvania.

On a more practical level, Trump is confronting an unprecedented balancing act, campaigning while facing possible trials in at least three different jurisdictions.

He will appear in federal court in Washington Thursday (Friday NZ time) to face the latest charges before headlining an Alabama Republican Party dinner on Friday. He faces another arraignment next week in Florida after special counsel Jack Smith filed additional criminal charges against him there in the case related to his handling of classified documents. That will come between a campaign stop in New Hampshire and a possible trip to the Iowa State Fair.

Trump also faces the potential of new charges in Atlanta related to efforts to overturn the 2020 election results in Georgia and must also decide whether to attend the first Republican presidential debate on August 23.

Trump campaign officials said they weren’t worried about such logistical challenges.

“President Trump’s campaign will not be impacted by the deep state’s efforts at election interference no matter how hard they try,” said Trump senior campaign adviser Jason Miller who, like others, argued Trump and his team are well-practised at being on defence.

Cheung noted that, to date, no campaign events had been rescheduled or cancelled because of legal proceedings and that, if anything, more stops have been added.

“It’s full speed ahead,” he said before the latest indictment.

But the challenge for Trump goes beyond politics. Each of the cases against him — ranging from the classified documents case in Florida to allegations in New York of making improper hush-money payments to women and the indictment released on Tuesday — will require intense preparation.

“Obviously, under normal circumstances, it’s impossible to prepare for more than one criminal trial at a time,” said Barry Boss, a leading white-collar criminal defence attorney. “Usually that’s overwhelming in and of itself. So the notion of having multiple indictments that you’re facing is just to me inconceivable.”

In general, rules require defendants in federal cases to be present for major events like their initial appearances and when a verdict is returned, but give them leeway to decide when else to appear.

Former President Donald Trump is due in court on Friday (NZ time), the first step in a legal process that will play out in a courthouse between the White House he once controlled and the Capitol his supporters once stormed. Photo / AP

“There are some people who are very engaged in their defence and want to talk to you every day, and there are others that leave it to you and will be available if you need them,” Boss said.

The investigations are also dominating Trump’s campaign spending. So far this year, the former president’s political operation has spent more on legal fees defending him, his staff and his allies than on travel, rallies and other campaign expenses combined, an AP analysis found.

Under Department of Justice guidelines, sitting presidents are generally shielded from indictment and criminal prosecution. But winning back the White House would not protect Trump indefinitely.

If he is elected anew, he could direct his attorney general to dismiss the federal cases, fire prosecutors or test the limits of presidential power by trying to pardon himself. But those efforts would only apply to the federal cases, not the state criminal charges he faces in New York or could face in Georgia.

Even if Trump does not end up the nominee, a different Republican president would likely face enormous pressure from Trump to drop the charges to placate his supporters - a type of pressure no president has faced since Gerald Ford pardoned his predecessor, Richard Nixon, for his Watergate crimes.

In all, “It’s extraordinarily bad news and the impact internationally would be devastating. That’s why people need to come to their senses,” said John Bolton, Trump’s former national security adviser and now critic, who believes the reality heightens the pressure on Republicans to find an alternative candidate. “Somebody better take the initiative and say we are heading off the edge of a cliff here.”

But so far, Trump has faced little political fallout from his indictments, his big lead over Republican challengers even growing as they struggle to respond. At the same time, he has used the prospect of jail time to try to raise cash.

The “Department of ‘Justice’” he complained in a recent fundraising email, “is trying to put ME in JAIL for the rest of my life as an innocent man.” Other solicitations have arrived with subject lines like “re: 400 YEARS in prison”.

Fleischer said voters will begin to view Trump’s legal triumphs and losses through the lens of the campaign.

If charges in one case are dismissed, for instance, “it will be like he won this legal primary,” and if a judge rules against him, “people will feel like he lost the first day of the court primary”.

Fleischer said that, if Trump ends up having to spend significant time in court, he can imagine the former president on the courthouse steps, telling voters watching at home, “I’m not on trial, you’re on trial. And I’m in this courtroom fighting for you.”

“It can take him off the road, but he just has another platform on which to have his voice be heard. To him, it’s all one campaign.”