It’s tempting to think of Trump in an orange jumpsuit - but are the charges too hard to prove?

Usually at times like this, one is inclined to believe that ‘stranger things have happened’, writes Sean O’Grady. But they haven’t, at least in the United States of America

There is nothing to prevent someone on trial or in custody from campaigning for the US presidency and then executing their responsibilities from a cell (AP)

I’ll admit, the idea is tempting. Donald J Trump, a man whose skin tone is more vibrant than anything on the Pantone scale, togged out in a colour-coordinated Guantanamo-style orange jumpsuit, whingeing about the food and shower situation, looking over his shoulder at unsympathetic fellow inmates, and spending the rest of his unnatural life in jail.

Usually at times like this, one is inclined to think that “stranger things have happened”, but they haven’t, at least in the United States of America.

“Jail to the Chief” is supposed to be a joke, not a reality. The founding fathers certainly couldn’t have been expected to make provision for such a turn of events when they established the American republic.

According to their usually wondrously balanced constitution, there is nothing to prevent someone on trial or in custody from campaigning for the presidency and then executing their responsibilities from a cell. So, Trump could even end up hosting visiting heads of state and government in a penal institution, with the normal restrictive visiting times adding a further level of complication for the White House diplomatic etiquette section.

Perhaps they could create a replica of the Oval Office in a specially enlarged cell for Trump, with the personal presidential toilet bucket, carrying the bald eagle crest, discreetly placed behind an array of state flags, a portrait of Richard Nixon looking benignly down, as if satisfied that he isn’t the biggest crook to have been president.

You may imagine King Charles and Queen Camilla hanging around the prison governor’s office waiting to see the leader of the free world: “The president will be with us shortly, your majesty, but he was assisting Proud Boy colleagues to settle a dispute with the Mexican mafia in the canteen when the debate became heated and the proceedings had to be adjourned…”

In a way, this is as it should be. It cannot be right that anyone can evade justice simply by running for elected office or getting elected, which is what would happen if Trump got his way again. It would be absurd and wrong. Trump faces such a range of complex and important legal actions that they will disrupt his presidential campaigning, and, as I say, the future of America’s governance, but it is against any notion of justice and logic that he should be able to pardon himself through popular pressure or political activity, or literally issue a presidential pardon to himself upon assuming office, presumably after he’s sworn the oath in his cell.

What has befallen him is entirely his own fault and if it affects his business, his family or his political ambitions, then tough. That’s the whole point of a criminal justice system. He, and not some vast improbable conspiracy, is responsible for the fact that he faces so many actions simultaneously. It ain’t the trials that should be shut down but his run for office. After all, there’s always 2028, if he gets out on parole.

It won’t prevent him trying to stop it, though. When such a man as Trump is in trouble and yells “Nazi” – as he now does – we know that he knows he’s in deep trouble, and can only get out of it by mobilising his fanatical base to protect him. Which, as we may all recall, is what got him into trouble in the first place.

He has lost the argument, if not yet the cases, just as surely as he lost the November 2020 election and tried to overturn it via insurrection – as the charge sheet suggests. With Trump, the greater the bluster, the more bitter the scorn, the louder the protests, the more guilty he is.

Trump does, though, have some things running in his favour. The latest charges related to the January 6th insurrection are too broad, too complicated, involve too many figures and are too susceptible to the formidable line of defence he has at his disposal – the First Amendment, which forms the basis of the Bill of Rights, and protection of free speech and assembly. It reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

It is an irony lost on Trump and his cult followers that it is designed to prevent despots from extinguishing democracy, rather than the other way round, but it will prove extremely handy in court. He was always completely free to denounce the election, claim he was the victim of a conspiracy, allege theft, treachery and fraud, and organise a mob to listen to his provocative speeches.

It will prove hard to argue that he himself organised a conspiracy, because such things are easy to imagine but hard to prove. It may well be that the other, more narrow cases Trump is faced with will prove the more problematic for him, albeit they are less serious: the probably soon forthcoming action in Georgia about pressuring state officials for example; the claims about financial irregularities emanating from Manhattan; or his unlawful seizure of presidential papers containing state secrets. It’s the Al Capone school of law enforcement – get ‘em on easily proven tax evasion rather than gangsterism.

Trump is more vulnerable than he looks, but only if the prosecutors do not overplay their hand.