Being elected as president seems to have become a get-out-of-jail-free card for Donald Trump, but the real concern lies in what this implies for the rule of law in our country. New York Judge Juan M. Merchan reinforced Trump’s 34 felony convictions for falsifying business records on Friday. He has set the sentencing date for January 10th, indicating he might take the highly unusual step of granting Trump an unconditional discharge. This essentially means Trump will face no legal consequences from these convictions—not imprisonment, probation, or even a fine.
Trump’s legal team is trying to block even the mention of an unconditional discharge while they appeal. However, Merchan sees no other realistic option. Imposing a prison sentence on a sitting president is incompatible with running the United States. The appellate courts would likely overturn such a sentence, arguing that under the Constitution, a state’s ability to imprison cannot override the election of a president. It’s implausible to expect Trump to carry out his constitutional duties from a prison cell in New York, nor would it be practical for a state judge to impose probation, leaving the president under constant threat of revocation and imprisonment.
Trump faced up to four years in prison for these particular convictions. According to a study by the New York Times, among 30 cases in Manhattan involving falsified business records over the past decade, none received an unconditional discharge. Most received sentences including jail, probation, or fines; some who accepted plea deals faced terms requiring restitution or community service. Notably, Michael Cohen, who arranged the hush money payments leading to Trump’s conviction, received a three-year prison sentence and spent 13 months in custody, yet Trump, found to have orchestrated and authorized these payments, will never spend a day behind bars.
But this issue is only part of Trump’s effective immunity. He was indicted in the U.S. District Court for D.C. for actions aimed at undermining the 2020 election results. Had he lost in November, he would have faced trial and possibly prison if convicted. However, these charges were dismissed post-election due to a Justice Department rule preventing the prosecution of a sitting president.
Similar reasoning led to the dismissal of federal charges in Florida regarding mishandling of classified documents, which included serious allegations of evidence tampering and lying to investigators. Conviction on these charges could have led to a considerable prison sentence.
Moreover, last summer’s Supreme Court ruling in Trump vs. United States declared that Trump couldn’t be prosecuted for actions taken under official presidential powers. This resulted in some charges being dropped, offering protection for any acts completed in his first term, and he begins his next term knowing the likelihood of facing prosecution for illegal acts is minimal.
Reconciling this with the most fundamental rule of law principles is challenging—chief among them, that no one, not even a president, is above the law. The very foundation of America rests on this belief, articulated by the Constitution’s framers who certainly did not envision creating a president immune from legal accountability.
Trump still confronts civil liabilities for previous behavior. Recently, a federal appeals court confirmed a $5 million verdict against him for sexual assault of E. Jean Carroll. Another jury awarded Carroll $83.3 million in a defamation case against Trump, which is now under appeal. Trump is also appealing a $355 million verdict related to business fraud involving him and his company.
However, none of these civil cases tackles the crimes he’s been charged with. As it stands, there seems little chance he will ever be penalized for those felonies.
The erosion of the rule of law is further highlighted by Trump’s pledge to pardon individuals involved in the January 6, 2021, Capitol attack. Over 1,500 people have faced federal charges in connection with that day. While many involved misdemeanors like trespassing, hundreds have pleaded guilty to or been convicted of assault or other felonies. Despite the seriousness of these offenses in a democracy, there’s the possibility they could be exonerated.
It’s easy to overlook just how unprecedented this situation is for our republic. Never before has a convicted felon secured the presidency. Never before has election to this role resulted in the dismissal of criminal charges. It challenges the core of the rule of law, transforming election to the presidency into a proverbial get-out-of-jail-free card.
Erwin Chemerinsky, a contributing writer, is the dean of UC Berkeley Law School.
