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Is It Possible Trump Will Strike a Plea Deal to Avoid Prison?

Photo-Illustration: Intelligencer; Photos Getty Images

We do not know how the slew of criminal charges against Donald Trump will be resolved. Perhaps the former president will lose his reelection bid to Joe Biden and wind up in a federal penitentiary. Maybe he will get back into office and preside over a wave of retaliatory prosecutions by the Justice Department. Recently, in an interview with Kara Swisher, Chris Christie — the former New Jersey governor, U.S. Attorney, and Trump supporter — posited another tantalizing possibility: What if Trump is so afraid of going to prison that he agrees to plead guilty and drop his reelection bid as part of a comprehensive deal with federal and state prosecutors?

The self-serving logic of the argument is worth noting before we go further. Christie’s whole campaign strategy appears to be going on Trump-unfriendly media outlets, delivering sick burns about Trump to audiences filled with people who will mostly not be voting in the GOP primaries, and trying to bait Trump into attacking him so that his terrible poll numbers somehow improve. Last month, he argued that Trump would not skip the first Republican primary debate because Trump’s “ego” will “not permit him to have a big TV show that he’s not on,” but thus far, Christie’s prediction has not been borne out.

Still, Christie has not exactly been alone in arguing that a global plea deal might be a sensible resolution, but he told Swisher that he had some unique psychological insight into the former president “based off a conversation I had with him 18 years ago” about a New Jersey politician who had just been sentenced to prison time. Trump asked what would happen to the guy, and Christie told Trump that he was indeed headed to a federal penitentiary.

According to Christie, Trump then “reached over and grabbed my arm and he said to me, ‘I could never do that. I could never go to jail. That’s unbelievable. I couldn’t go to jail’” — thus Christie’s suggestion that Trump would go as far as surrendering his presidential bid in order to avoid that fate.

In theory, one can envision a deal that looks something like this: Trump pleads guilty to a small number of federal charges with the lowest statutory maximum penalties — say, the charge against him for causing the false certification provided in response to the Justice Department’s grand jury subpoena in Florida and the charge against him in Washington for conspiring to defraud the government, both of which have five-year maximum terms of imprisonment upon a conviction. With Trump agreeing to end his White House bid, federal prosecutors could agree to dismiss the remaining charges and not to seek prison time on the counts of conviction, with local prosecutors following suit.

All of this, however, is easier said than done. For starters, Justice Department policy generally requires prosecutors considering a plea agreement to “include the most serious readily provable offense.” This allows for the considerable exercise of judgment, but it is hard to see the government entirely forgoing the most serious pending charges against Trump — like the counts for obstructing the electoral certification and those for obstructing the federal investigation in Florida (all carry 20-year statutory maximum penalties).

Trump is also a singularly unappealing candidate for prosecutors to work out a generous plea deal with. He is now constantly railing and threatening retribution against them, and he is unreliable.

Justice Department policy disfavors any sort of plea deal in which the defendant maintains his innocence, so prosecutors (and the judges) would typically expect a clear admission of guilt for the relevant conduct, with no wiggle room or subsequent disclaimers. It is true that Trump has experience settling civil cases, but he has never had to provide a straightforward, personal admission of serious wrongdoing.

There would also be serious problems with the optics and with the precedent that the Justice Department would be setting. As a practical matter, the arrangement that Christie and others have floated would not be that different from giving Trump a pardon in exchange for his forgoing his reelection bid. Even the suggestion of such an arrangement by federal prosecutors, were it to leak (which it would — from Trump), could be turned around and weaponized by Trump in his reelection effort to argue that the proposal actually confirms that prosecutors criminally charged him to prevent him from getting back into office. At the moment, that is literally the central theme of his campaign.

And what about the long-term implications? Trump is running for office at least partly to avoid going to prison. If the Justice Department were to reward this gambit, it would provide Trump with a level of generosity that no other American would get. It would also incentivize more accused criminals to run for higher office.

In addition to all this, the logic for Trump to enter into a deal like this is not as obvious as Christie suggests. Right now, he holds a commanding lead in the GOP primary and has a very plausible path to defeating Biden. If he were to pull this off, the pending federal charges would almost certainly disappear (for instance, through a self-pardon), and the state charges would likely be put on ice.

Under the circumstances, it is hard to say that any particular resolution to Trump’s unprecedented legal situation is inconceivable. But the prospect of some sort of grand bargain between the Biden Justice Department and Trump seems about as probable as Chris Christie winding up in the White House.

Will Donald Trump Strike a Plea Deal to Avoid Prison?