It may seem unlikely that Trump will ever end up in a criminal court. As he himself once said, “When you’re a star, they let you do it.” But for all his advantages and all the people that enabled him to be as he is, including loyalists in the Justice Department and the federal judiciary, Trump now faces a legal risk unlike anything in his infamous checkered past — and well beyond anything confronted by any former commander-in-chief leaving office.
To assess the odds that he will end up on trial, and how the events would unfold, some of the country’s prominent prosecutors, defense attorneys, and legal scholars were interviewed.
For the past four years, they have been assessing the case against Trump: the evidence already gathered, the witnesses prepared for testimony, the political and constitutional problems involved in prosecuting an ex-president.
Once he leaves office, they agree, there is good reason to think Trump will face criminal allegations.
“It’s going to head toward prosecution, and the litigation is going to be fierce,” says Bennett Gershman, a professor of constitutional law at Pace Law School who served for a decade as a New York State prosecutor.
According to the legal experts, this is how Trump could become the first former president in American history to find himself on trial — and perhaps even in jail.
Trump states that “executive privilege” limits prosecutors from gaining evidence of presidential misconduct. The provision has been restricted to shielding discussions between presidents and their advisers from external scrutiny. But Trump has tried to expand the protection so it consists of pretty much anything that he or anyone in the executive branch has ever done.
William Consovoy, one of Trump’s lawyers, famously argued in federal court that even if Trump killed someone down in the street while he was president, he could not be prosecuted for it while in office. Although the courts have repeatedly ruled against such arguments, Trump will continue to gain immunity from the judicial process after he leaves office.
“If federal charges were ever brought, it is unlikely that a trial would be scheduled or start anytime in the foreseeable future,” says Timothy W. Hoover, president of the New York State Association of Criminal Defense Lawyers. By the time any federal lawsuits come to trial, Trump is likely to be either senile or dead. Even if he broke the law as president, the experts agree, he may well get exonerated.