Despite potential sedition charges, jailing Trump would be a problem

Former US President Donald Trump

Former US President Donald Trump. His unorthodox politics, unconventional tactics, and capacity to regularly test the limits of constitutional law, make him a tough and challenging former chief executive.

Photo credit: Seth Herald | Getty Images | AFP

Former US President Donald Trump remains a conundrum. His unorthodox politics, unconventional tactics, and capacity to regularly test the limits of constitutional law, make him a tough and challenging former chief executive. The January 6th investigation has put up a preponderance of evidence that could potentially see the 45th president of America charged with seditious conspiracy by a grand jury. A horribly politically divisive trial will then follow.

Trump’s troubles do not end there. He faces multiple potential criminal charges from two other fronts aside from the January 6th committee. These are the Fulton County Georgia District Attorney’s criminal investigation into Trump’s meddling in the County’s elections and tax evasion charges from New York’s Attorney-General. The reality is that Trump faces serious prison time. But despite potential seditions conspiracy charges, imprisoning Trump creates more problems.

Put into context, Trump’s actions before, during and after the 2020 elections, if successful, would have led to a revolution inside a constitutional crisis. A violent takeover of the US government by his supporters on Capitol Hill would have forced the former Vice-President Mike Pence to unconstitutionally reject electors from the seven disputed states Trump claims he won. Mr Pence would declare Trump legally elected president.

Unconstitutional act

Alternately, Mr Pence could also refer the seven disputed elector slates back to the respective states for the state legislatures to decide which ones were legitimate. Another unconstitutional act. This would have created a constitutional crisis that the Supreme Court intervened to decide the US president. The court would have to determine the legality of Pence’s actions based on the 12th Amendment of the US Constitution. In deciding such a case, the impartiality of the US Supreme Court would have been put into question as well as the tenuous dilemma of whether the court was wading into political questions.

The challenge for prosecutors is that while these criminal charges on multiple fronts can lead to the imprisonment of the former president, such a turn of events will set a horrible precedent for the US. No former president has been jailed for seditious conspiracy. Furthermore, with half of the country having voted for Trump, it will only exacerbate the partisan tensions in the country.

In revenge for potential prison time for Trump, the Republicans will be sure to attempt to impeach and imprison President Joe Biden before the end of his term in 2024. The same treatment from Republicans will be applied to Vice-President Kamala Harris if Biden decides not to seek a second term and Ms Harris happens to become president.

Rematch with Biden

In addition, a successful imprisonment of Trump will only turn him into a martyr to his core supporters. It will be seen as a blatant attempt at denying Trump a potential rematch with Biden in 2024. This will be interpreted by Trump’s Republican supporters as the Democratic Party selectively choosing who can and cannot run for office by using the January 6th Committee as a partisan score-settling mallet to pound opponents in the Republican Party into submission.

What is clear is that, on January 6, 2021, Trump’s actions created a clear and present danger to American democracy. The dilemma is how to deal with an amoral, unconventional politician that stole the hearts of close to half of America in the 2020 elections. This danger not only remains clear but present. Imprisoning Trump will create more problems than it will solve. It will lead to a less perfect union by further widening the fissures that bedevil the American republic.

The tribulations of America in 2022 are encapsulated in Benjamin Franklin’s words after the Philadelphia Constitutional Convention. Asked “What kind of a government have you given us?” he replied: “A republic, if you can keep it!” The post-Trump era has been a major threat to this American republic.


Prof Monda teaches political science, international relations and American government at the City University of New York (York College), New York, USA. [email protected] @dmonda1

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