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If Trump is convicted, Secret Service protection may be obstacle to imprisonment

If convicted in any of the three criminal cases he is now facing, Donald Trump may be able to influence whether he goes to prison and what his stay there looks like under a law that allows former U.S. presidents to keep Secret Service protection for life, some current and former U.S. officials said.

Presidents since 1965 have been afforded lifetime protection. Since then, only Richard M. Nixon has waived it, as a cost-saving move for taxpayers 11 years after his resignation.

But unless he follows Nixon’s example, Trump could force politically and logistically complex questions over whether officials should detail agents to protect a former American president behind bars, leave it to prison authorities to keep him safe, or secure him under some type of home confinement, former U.S. officials said.

Could Trump face prison? “Theoretically, yes and practically, no,” said Chuck Rosenberg, a former top federal prosecutor and counsel to then-FBI Director James B. Comey. Rosenberg served briefly as head of the Drug Enforcement Administration in the Trump administration and notably said the president had “condoned police misconduct” in remarking to officers in Long Island that they need not protect suspects’ heads when loading them into police vehicles.

“Any federal district judge ought to understand it raises enormous and unprecedented logistical issues,” Rosenberg said of the prospect Trump could be incarcerated. “Probation, fines, community service and home confinement are all alternatives.”

Trump is now facing three, separate criminal cases, with the prospect of at least one more on the horizon. He has a pending March trial date in a New York state fraud case. He was charged by special counsel Jack Smith in federal court in Florida over the handling of classified documents that were taken from his Mar-a-Lago home after he left the White House. In federal court in D.C., Smith’s team alleges Trump conspired to subvert the results of the 2020 election. He could soon be charged in Georgia on similar allegations.

The charges Trump faces technically come with the possibility of decades in prison — though pleas, verdicts and possible punishments are very far off.

Mary McCord, who served as acting assistant attorney general for national security during President Barack Obama’s administration and led the department for the first several months under Trump, said Trump presents unique challenges to the Justice Department. Ensuring some penalty for a former president under Secret Service detail would require extensive discussions and potential accommodations, “because it really would be a pretty enormous burden on our prison system to have to incarcerate Donald Trump.”

The question is an open one at the U.S. Secret Service. Asked whether a former president who does not waive protection can be incarcerated, agency spokesman Anthony Guglielmi said, “The Secret Service does not have a comment or response, only because there is no such policy or procedure that currently exists.”

“We won’t have any further comment,” added Marsha Espinosa, spokeswoman for the Secret Service’s parent agency, the Department of Homeland Security.

How do you imprison a former president?

Former president Donald Trump appeared at a D.C. courthouse on Aug. 3 for an arraignment on charges that he conspired to overturn the 2020 election results. (Video: HyoJung Kim/The Washington Post, Photo: Tom Brenner/The Washington Post)

Former and current Secret Service agents said that while there is no precedent, they feel certain the agency would insist on providing some form of 24/7 protection to an imprisoned former president. And, they say, the agency is probably planning for that possibility, seeking to match to some degree its normal practice of rotating three daily shifts of at least one or two agents providing close proximity protection.

“This question keeps getting raised, yet no official answers” from the Secret Service, said Jonathan Wackrow, a former Secret Service agent and now chief operating officer for Teneo Risk, a corporate advisory and communications firm. “However, we can infer how security measures could be implemented based on existing protective protocols. Unless there are changes in legislation or the former president waives protection, the U.S. Secret Service would likely maintain a protective environment around the president in accordance with their current practices.”

Current and former agents said Trump’s detail would coordinate their protection work with the Federal Bureau of Prisons to ensure there was no conflict about duties or about how they would handle emergencies, as well as the former president’s routine movements in a prison — such as heading to exercise or meals. The Secret Service, they said, would maintain a bubble around Trump in any case, keeping him at a distance from other inmates.

“In some ways, protection may be easier — the absence of travel means logistics get easier and confinement means that the former president’s location is always known,” Wackrow said. “Theoretically, the perimeter is well fortified — no one is worried about someone breaking into jail.”

The Justice Department’s Bureau of Prisons declined to say whether former presidents with Secret Service protection could be incarcerated, or to comment on circumstances of a possible Trump designation. However a spokesman said general factors can include the level of security an inmate requires, any health needs, proximity to their release locations and “separation and security measures to ensure the inmate’s protection.” The bureau has had to handle VIP inmates in the past, though minimum security camps often have dormitory style housing.

Another agency official said it was in a position similar to the Secret Service, lacking a policy or procedure.

What would sentencing look like?

The prospect of potentially decades in prison for Trump is politically loaded, though the charges he faces could carry such a penalty. After entering a not-guilty plea in Miami federal court on June 13, Trump claimed he was being threatened with “400 years in prison,” adding up the statutory maximum penalty for the 37 counts against him. The charges he faces in D.C. related to his alleged efforts to stay in power despite losing the election could add additional decades, based on that math.

Judges almost never apply maximum penalties to first offenders and rarely stack sentences rather than let them run concurrently. However, federal sentencing guidelines are highly technical. Specialists estimate that a first offender convicted of multiple counts of willfully retaining national defense information and obstructing or conspiring to obstruct an investigation by concealing evidence might face a range of anything from 51 to 63 months on the low end — about five years — to 17½ to 22 years on the high end — or about 20 years, given Trump’s alleged leadership role and abuse of trust.

Similarly, Jan. 6 riot defendants convicted at trial of two of the same counts with which Trump is charged — conspiring to or actually obstructing an official proceeding — have faced sentencing guideline ranges as high as seven to 11 years, and as low as less than two years.

But judges always have the final say.

“Without question, if it were anyone else [but Trump], prison would be a certainty,” said Thomas A. Durkin, a former federal prosecutor who teaches national security law at Loyola University Chicago. However, he said, “The Secret Service waiver issue is a novel and complex issue” that could theoretically factor into an exception.

The Justice Department has mounted at least a dozen investigations into the removal or unlawful retention of classified information since 2005. Pentagon employees, contractors and people employed by the FBI, the CIA and National Security Agency have all been convicted and sentenced to prison. Among the most recent, former contractor Harold Martin was convicted in 2019 and is serving a nine-year prison term for taking home a huge number of hard and digital copies of classified materials — the equivalent of 500 million pages. And former FBI analyst Kendra Kingsbury was recently sentenced to nearly four years in prison after taking home more than 300 documents including materials related to al-Qaeda and Osama bin Laden.

But other high-ranking U.S. officials who pleaded guilty got probation, including President Bill Clinton’s former national security adviser Sandy Berger in 2005 and retired U.S. Army Gen. David H. Petraeus, a former CIA director, in 2015. Berger admitted to concealing and removing five copies of a classified document from the National Archives, and was ordered to pay a $50,000 fine and give up his security clearance for three years. Petraeus was sentenced to two years of probation and fined $100,000 following revelations that he shared some materials with his biographer and lover.

The acceptance of a plea deal is a crucial consideration. In the only case of an American president or vice president to be convicted of a crime, U.S. prosecutors involved in the federal bribery prosecution that led to Vice President Spiro T. Agnew’s resignation in 1973 said prison time never became an issue — because he entered a plea deal.

“It was clear from the very beginning that there would be no deal if he had to go to jail,” recalled Russell T. Baker Jr., former Maryland U.S. attorney.

“We in the department debated with [attorney general] Elliot Richardson whether or not we should insist on a jail term, but Agnew, his lawyers kept saying and we believed there would be no deal then, so it never really rose as an issue,” Baker said.

Agnew, a former Maryland governor, received three years probation and a $10,000 fine after agreeing to enter a plea to a criminal tax felony for failing to report hundreds of thousands of dollars in bribes and kick backs he received as a county executive.

U.S. prosecutors have charged more than 300 people with obstructing Congress’s certification of the election, and those sentenced after trial have received around three and a half years in prison on average, although Army veteran Jessica Watkins, an Ohio bar owner who stormed the Capitol in military-style formation with the Oath Keepers, got eight and a half years. None who went to trial have escaped prison time.

Neither a felony conviction nor incarceration bar a candidate from running for president. Trump currently leads a growing field of Republican candidates, and said post-indictment he will not quit, “I’ll never leave.”

What are the complications of confinement?

“While it is unusual … the complexity of the conditions of confinement could have an impact on the sentence a judge imposes,” said Nancy Gertner, a retired federal judge and Harvard Law School professor.

Gertner cited a body of law that allows a judge to consider whether a frail defendant might be subject to abuse in prison, and a case in which she recognized that a non-U.S. citizen would not qualify for programs such as drug or mental health treatment.

Unlike Berger and Petraeus whose crimes appear to be “one-offs,” Trump is accused of a “much more sustained problem,” she said.

“On the other hand, there are the political considerations, and the uniqueness of the case,” she added.

Gertner said the Secret Service has handed off security duties in the past, such as when former first lady Hillary Clinton was protected by State Department security as secretary of state. The Secret Service can direct and oversee protection by others, assigning a special detail to work inside the Bureau of Prisons, or potentially helping prison officials enforce a custodial sentence at home — potentially such as at Trump’s Bedminster, N.J., or Mar-a-Lago residences or elsewhere.

“Who knows how that would pan out?” Gertner said. She added, “I think the answer would be, an accommodation could be made. … The fact that there have been accommodations in the past for various situations suggest there could be accommodations now.”

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