Alexander Gillespie: Trump’s legal battles lead the US down a dangerous path

Former President Donald Trump has appeared in federal court on dozens of felony charges related to documents found at his Mar-A-Lago estate. Photo / Alex Brandon, AP

OPINION

The supreme law of America, the Constitution of the United States, stipulates only that to be a presidential candidate, the person must be a natural-born citizen, at least 35 years old, and has been a resident for at least 14 years.

There is nothing about convictions as a bar to suitability to be President.

It is this law that needs to be balanced against all the cases being thrown against Donald Trump.

With the first case, the conviction in NYC based upon New York law that it is more likely than not that he sexually abused and defamed E Jean Carroll – this is a civil judgment and results in a fine.

Similarly, he has been charged 34 times for falsifying New York business records related to hush money to Stormy Daniels. If he is found guilty, although jail time is possible (not for paying hush-money, but for spending money to help an election campaign and not declaring it), fines are most likely. Even Daniels does not want him to do jail time for this alleged crime.

Where it gets interesting is with the federal cases – of which the first one for the retention of secret documents is currently occurring. This is being tried by the Department of Justice, in its attempt to hold Trump to account under the Espionage Act.

Former President Donald Trump has appeared in court on dozens of felony charges accusing him of illegally hoarding classified documents. Photo / Alex Brandon, AP

This is an old, large hammer of a statute that is used to try spies and those who breach rules around important state secrets. This is the law that Chelsea Manning got hammered with a 35-year sentence (which Obama commuted) and Julian Assange will be battered with if the Americans successfully extradite him from Britain.

With Trump, he will not be guilty of any actual espionage, but more, the unlawful retention and deceit around restricted, secret or top secret, documents. This includes 31 counts of unauthorised possession of national defence documents; three counts of concealing boxes of classified documents; two false statements about them being handed over and an alleged scheme to hide them; and one count of conspiracy to obstruct justice, all to retain the documents he took from the White House.

His charges are at the lower end of concern of the Espionage Act. It is not alleged he is an actual spy, whistle-blower or tried to pass on secrets to foreign agents.

Being found guilty of breaching the Espionage Act could earn him 10 years in jail. Under the other associated laws, he could collect five years for the conspiracy and false statements charge, and a whopping 20 years for the obstruction charge.

While this is possible in theory, sending him to jail would cause uproar and is probably unlikely. Even if he did get jail time, it would not stop him from running, or maybe even being President if he won.

My guess is that given the sensitivities at play, it is likely he will be convicted for his recklessness in keeping such material as he did. A penalty may be justified as what occurred is of a different scale, knowledge base, intent, and cooperation with the investigations from what Biden, Clinton and others did. On such matters of national importance, the Justice Department should not play favourites.

But, in this instance, the penalty should not involve incarceration.

Alexander Gillespie. Photo / Supplied, File

Where it gets difficult for Trump is with the recommendations for criminal charges that came out of the January 6 Congressional Inquiry. This inquiry recommended four charges: Conspiracy to defraud the United States; Conspiracy to make a False Statement; Obstruction of an Official Proceeding – and – critically – Insurrection.

The last one, insurrection, matters the most. This is the only crime, if convicted, that specifically prohibits the person from holding any official office.

The Department of Justice has still not decided what to do with these charges that were referred to it. While it has been vigorous in pursuing many of those involved in the actual riots, securing convictions for seditious conspiracy of trying to violently thwart the transfer of presidential power, it is unclear whether proceedings will be pursued against the former President on any of these related grounds. If they do try, getting a conviction on this would be harder than getting one under the Espionage Act.

The charge of insurrection requires intent and the free-speech defence is strong.

So too is presidential immunity, but it is not absolute.

If a conviction was secured that said Trump could not hold office, it could well end up at the Supreme Court, as this restriction could be pitted against the Constitution which contains no such restriction.

Politically, it is also difficult as the two attempts to impeach Trump through Congress failed. The second, which was directly on point around the January 6 riots, “incitement to insurrection”, failed to get the two-thirds requirement of Senators to agree that Trump had committed the crime, although a majority did agree he had.

To throw the same charge that could not be resolved in Congress to a court could divide the United States in a very dangerous way.

Nonetheless, this is the second, larger hand grenade still on the mantlepiece, next to the one labelled “Espionage Act”.

- Alexander Gillespie is a Professor of Law at the University of Waikato.