The Secret Service is legally required to protect current and former presidents. But none have ever faced the prospect of incarceration. Photo / Erin Schaff, The New York Times
The Secret Service is legally required to protect current and former presidents. But none have ever faced the prospect of incarceration. Photo / Erin Schaff, The New York Times
The former president could face probation or prison time. Either option would be without precedent.
With Donald Trump’s unprecedented felony conviction, what has long been a remote and abstract concept could move closer to a stunning reality: a former president of the United States behind bars.
But that wouldn’thappen fast.
A jury in Manhattan convicted Trump of 34 counts of falsifying business records in the first degree, a crime that under New York state law carries a possible sentence that ranges from probation to four years in prison.
But Trump is no ordinary defendant. And while most experts think a prison sentence is unlikely, the judge in the case, Juan M. Merchan, has made it known that he takes white-collar crime seriously. The judge set sentencing for July 11.
If Merchan hands down a punishment that lands the former president behind bars — what is known as a custodial sentence — Trump would be no ordinary prisoner.
That’s because the US Secret Service is required by law to protect former presidents around the clock, which means its agents would have to protect Trump inside a prison if he were sentenced to serve time.
The prospect of the former president ending up on Rikers Island has already been the topic of discussion among federal, state and local officials. Photo / Jose A. Alvarado Jr., The New York Times
Even before the trial’s opening statements, the Secret Service was in some measure planning for the extraordinary possibility of a former president’s incarceration. In the days before the trial began in April, prosecutors asked Merchan to remind Trump that attacks on witnesses and jurors could land him in jail even before a verdict was rendered.
Shortly thereafter, officials with federal, state and city agencies had an impromptu meeting about how to handle the situation, according to two people with knowledge of the matter.
That behind-the-scenes conversation — involving officials from the Secret Service and other relevant law enforcement agencies — focused only on how to move and protect Trump if the judge were to order him briefly jailed for contempt in a courthouse holding cell before or during the trial, the people said.
The far more substantial challenge — how to safely incarcerate a former president if he were to be sentenced to prison — has yet to be addressed directly, according to interviews with some of a dozen current and former city, state and federal officials.
That’s at least in part because a drawn-out and hard-fought series of appeals, possibly all the way up to the US Supreme Court, would be almost a certainty. That would most likely delay Trump’s serving any sentence for months, if not longer, said several of the people, who like other experts have suggested that a prison sentence is unlikely.
Merchan, whom Trump has continually attacked as “biased” and “corrupt,” could well decide to sentence Trump to probation rather than prison time.
That would raise the bizarre possibility of the former — and possibly future — commander in chief reporting regularly to a civil servant at the city’s Probation Department.
Trump would have to follow the probation officer’s instructions and answer questions about his work and personal life until the term of probation ended. He would also be barred from associating with disreputable people, and if he committed any additional crimes, he could be jailed immediately.
Trump speaks outside the courtroom after a jury convicted him of felony crimes for falsifying business records in a scheme to illegally influence the 2016 election. Photo / AP
Incarceration would present a far greater challenge, especially because Trump is the presumptive Republican nominee for president. “Obviously, it’s uncharted territory,” Martin F. Horn, who has worked at the highest levels of New York’s and Pennsylvania’s state prison agencies and served as commissioner of New York City’s correction and probation departments, has said. “Certainly no state prison system has had to deal with this before, and no federal prison has had to either.”
Protecting Trump in a prison environment would involve keeping him separate from other inmates, as well as screening his food and other personal items, officials said. If he were to be imprisoned, a detail of agents would work 24 hours a day, seven days a week, rotating in and out of the facility, several officials said. While firearms are strictly prohibited in prisons, the agents would, most likely, nonetheless be armed.
Former corrections officials said there were several New York state prisons and city jails that have been closed or partly closed, leaving large sections of their facilities empty. One of those buildings could serve to incarcerate the former president and accommodate his Secret Service protective detail.
Anthony Guglielmi, the spokesperson for the Secret Service in Washington, declined in a statement to discuss specific “protective operations.” But he has emphasized that federal law requires Secret Service agents to protect former presidents, adding that they use state-of-the-art technology, intelligence and tactics to do so.
Thomas J. Mailey, a spokesperson for New York state’s prison agency, has said that his department could not speculate about how it would treat someone who has not yet been sentenced, but that it has a system “to assess and provide for individuals’ medical, mental health and security needs.” Frank Dwyer, a spokesperson for the New York City jails agency, recently said only that “the department would find appropriate housing” for the former president.
While each count carries the possibility of up to four years in prison, Merchan would most likely order any sentence to run concurrently, meaning Trump would serve prison time on each of the counts simultaneously. Under normal circumstances, any sentence of one year or less would generally be served on New York City’s notorious Rikers Island, home to the Department of Correction’s seven jails. (That’s where Trump’s former chief financial officer, Allen Weisselberg, 76, is serving his second five-month sentence for perjury.)
Any sentence of more than a year would generally be served in one of the 44 prisons run by New York state’s Department of Corrections and Community Supervision.
And what if Trump is elected president in November and is still serving a sentence of probation or prison when he takes office in January? He could not pardon himself because the prosecution was brought by New York state, not the federal government.
