He cannot serve on a jury. BU LAW experts explain what rights the former president may or may not see restricted and how that could affect a Trump presidency
In a historic decision, a New York jury found former President Donald J. Trump guilty on 34 counts of falsifying business records, marking the first criminal conviction of a US president. The legal repercussions are still to be determined, but two BU School of Law experts don’t expect much to stick. Photo by Jabin Botsford/The Washington Post via AP
Politics
He cannot serve on a jury. BU LAW experts explain what rights the former president may or may not see restricted and how that could affect a Trump presidency
June 3, 2024
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- Alene Bouranova
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When a New York jury found former President Donald J. Trump guilty of 34 counts of falsifying business records in the first degree, it was historic for a number of reasons. The guilty verdicts represent the first-ever criminal conviction of a former president, and they make Trump the second person to campaign for president as a convicted felon. (The first was Eugene V. Debs, the Socialist Party candidate who famously ran for president from a jail cell in the 1920 election.) Trump’s sentencing is expected in early July.
Trump is currently the front-runner as the Republican candidate for the presidency. No law exists that bars a felon from running for president. But will the reality of having a criminal record complicate Trump’s bid for the Oval Office?
BU Today spoke to two criminal law experts from the School of Law, Shira Diner, a lecturer and instructor in LAW’s Defender Clinic, and Angelo Petrigh, a clinical associate professor and fellow Defender Clinic instructor, about what a felony conviction means for the former president and probable Republican presidential candidate.
The bottom line? It likely doesn’t mean much, Diner and Petrigh, both longtime public defenders, say.
“A lot of the negative consequences of getting a felony [conviction] really aren’t going to apply to Trump because of his wealth and status,” Petrigh says.
Normally, a felony conviction is a big deal, he says. It can prevent individuals from receiving government assistance like public housing and can impact job and loan applications. But, “none of those things are going to affect Donald Trump, because his wealth isolates him from those consequences,” Petrigh says. Even Trump’s right to vote will likely not be impacted, he notes: Florida, where Trump is a resident, prevents felons from voting. However, if an individual wasn’t convicted in Florida, the state defers to the law in the state where the individual was convicted. New York allows non-incarcerated felons to vote. Florida Governor Ron DeSantis, a Republican, has said he would allow Trump to vote.
If there will be any complication from his conviction, it will come from the punishment. The judge’s sentencing will ultimately determine his fate. On the severe end, his conviction could translate to up to four years in prison. On the lighter end, it could mean no jail time and being put on probation.
In the case of the latter, the judge would impose a set of conditions on Trump. “A major feature of probation is that instead of sending someone to prison, you rehabilitate them,” Diner explains. “The way to do that, theoretically, is to set very specific restrictions on what someone can’t do, or what they must do, and a judge has a ton of discretion in setting those conditions.”
What those conditions could be—and whether they would have any bearing on the election—remains to be seen, Diner says. Read more about potential consequences of Trump’s conviction below.
These interviews have been condensed and edited for clarity.
Q&A
With Shira Diner and Angelo Petrigh
BU Today: So, what are some of the consequences of being convicted of a felony?
Shira Diner: Donald Trump is in a different position from many people convicted of crimes, because he has resources. For people who don’t have resources, being convicted of a felony can mean losing government assistance—like SNAP benefits or FAFSA help, depending on the type of conviction—and housing benefits, and can have real implications for people in applying for jobs. A felony conviction can have consequences for professional licenses, such a broker’s or a medical license. There are also implications for someone who isn’t a US citizen and is convicted of a felony, and for those in armed forces service. These are not immediate problems for Trump. But once you’re convicted of a felony, that is a stigma you have to carry around forever. Felons can’t serve on juries. And states are allowed to set restrictions on felons voting. The law in Florida, where Trump is a resident, states that convicted felons are not allowed to vote. [However, because his conviction was in New York, it is likely that Trump would still be allowed to vote.]
BU Today: Is there any chance Trump could go to jail?
Angelo Petrigh: It’s not without precedent that somebody convicted of a nonviolent felony for the first time could get a jail sentence, so it’s certainly not impossible. But I would be very surprised if that happened here given the facts of the case: it’s not only a nonviolent offense, but it’s not the sort of circ*mstances where someone was defrauded of money. And then there’s obviously the fact that he’s not just a wealthy man, but a former president who’s running for president again. I can’t imagine a judge would want to have to justify a partial sentence. It’s already been a set of historic circ*mstances to have a former president indicted and then convicted. To deviate from what the sentencing expectation is—which I think is probation—would mean really sticking your neck out as a judge.
BU Today: What do you think probation for Trump could look like?
Diner: The judge can be as creative as they want. In theory, probation could absolutely have an impact on Trump’s ability to campaign. Conditions of probation that restrict travel have been upheld as constitutional, as long as they are somehow related to the probation goals. The judge could also say that Trump could be restricted from engaging in certain monetary transactions, which I’ve seen happen when people are convicted of financial crimes like insider trading. I don’t think the judge would set a condition that he can’t talk to the press or can’t continue campaigning, but who knows? Regardless, probation becomes a very intrusive way of policing people even when they’re not in custody. There’s a very limited expectation of privacy when you’re on probation. Petrigh: Probation comes with a lot of conditions, both automatic conditions and those that are discretionary for a probation officer. In theory, you could be subject to travel restrictions. You’ll be prevented from owning a firearm, and potentially prevented from associating with certain people convicted of felonies. But I imagine probation for Trump would include exceptions and not prevent him from leaving the state to go on the campaign trail, or associating with members of his staff who have felonies—which is an overwhelming majority at this point. The other aspect I’ve seen come up is that Trump can go on Truth Social and get nine million people to say that his probation officer is a fascist. No probation officer is going to go out of their way to enact any sort of meaningful interference with Trump running his campaign, because of the stakes.
BU Today: If Trump gets elected to the presidency, could probation continue into the White House?
Petrigh: I think the probation sentence would basically be terminated if he was elected. Social media has been abuzz about things like, can he command the army when he can’t possess a firearm? I don’t think those things have any realistic possibility. It just becomes too much of a headache. I don’t think being the commander-in-chief will ever be restrained by something like a state probation sentence for an unrelated offense. That comes with constitutional issues: even if New York tried to enforce probation conditions, I feel like federal courts would enjoin any sort of enforcement that limits his ability to carry out the duties that he was elected to do.
BU Today: If nothing else, this case puts a huge spotlight on our criminal justice system. What do you hope this case brings attention to?
Diner: Being convicted of a felony happens all the time, with much more severe implications for others. The implications of not being able to get Section 8 housing if you have a conviction are really significant. So are the ramifications in terms of employment. As I said earlier, there’s a huge stigma attached to being a convicted felon. It just sets up barrier after barrier and makes your life significantly harder, often in a really unfair way. If I were to try and send a message, what I hope people take from this is the difference in treatment between people with means and people without. The best example I can think of is: Trump walked out of that courtroom, on his own. I tried [and failed] to think about a client of mine who was convicted of a felony at trial and got to walk out of the courtroom after. Even if they weren’t being held on bail pending a trial, they’re almost always taken into custody at that point and have to surrender their passport. Petrigh: Calling Trump a felon as a dirty word doesn’t serve anyone’s purposes. It’s only going to be used to stigmatize my clients [often convicted felons without means]further. The reality is, if you think Trump was a bad person because of what he did, it’s because of what he did. It’s not because of this scarlet letter that we’ve imposed on people in society. I’d like to destigmatize convictions. Obviously a conviction like this matters. I just don’t want us to escalate the fact that Trump has been convicted into anything that adds to the problem of how much we penalize poor people with convictions, and how much status they lose. These are people that could become members of society again, but we prevent that by placing stigmas on them.
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