(NewsNation) — Former President Donald Trump could face a criminal indictment soon, but even if he is charged and convicted, Alan Dershowitz believes Trump could again run the country, only this time from behind bars.
The prominent attorney and former Harvard Law School professor arrived at the conclusion based on the text of the U.S. Constitution, which lists only three criteria to qualify for the presidency. None specifically eliminate a candidate based on their criminal record.
“He can run from prison, the way (Boston) Mayor (James) Curley did, and he could win, and he can govern from prison,” Dershowitz said Friday on “CUOMO.”
The Manhattan district attorney has been ramping up an investigation into a hush-money payment that was made to porn star Stormy Daniels to allegedly keep quiet about an affair she said she had with Trump.
Earlier this week, Trump was invited to testify before a Manhattan grand jury in connection with the hush money investigation, according to his lawyer. On Monday, the former president’s longtime fixer and former attorney, Michael Cohen, who ultimately made the payments in question, testified before the grand jury.
Former Trump attorney Michael Cohen made the payment to Daniels in 2016 and was later reimbursed by Trump. He says he was acting on Trump’s direction, admitted to campaign finance violations and pleaded guilty in 2018.
Trump has acknowledged that he paid Cohen a “monthly retainer” as part of an agreement to “stop the extortionist accusations made by Daniels,” and denied having an affair with her. The former president said the contract had nothing to do with campaign funds, and his company logged the reimbursements as a legal expense.
Federal prosecutors said the payments amounted to illegal, unreported assistance to Trump’s campaign. They also accused Trump’s company of inflating Cohen’s reimbursement for tax purposes.
If prosecutors do indict Trump, Dershowitz and former White House staffer Anthony Scaramucci agree it would have serious ramifications on the American political and legal system.
“I do think that (an indictment) makes him more powerful; it consolidates his base and it makes it more likely that he wins the Republican nomination,” Scaramucci said. “This would be a galvanizing factor in (the primary), and if it’s not this, it’ll be Georgia or whatever criminal indictment could be coming beyond this.”
Trump is also the focus of an investigation in Georgia, where the Fulton County district attorney impaneled a special grand jury to examine Trump’s and his team’s efforts to overturn the 2020 election. One key element is a phone call Trump had with Secretary of State Brad Raffensperger, whom Trump asked to “find” more than 11,000 votes to declare him the victor in the state.
There’s also a third Justice Department investigation into classified documents that were discovered at Trump’s estate in Palm Beach, Florida. A judge ruled Friday a Trump attorney can be compelled to answer more questions in front of the grand jury in that case.
In New York, Dershowitz takes issue with the statutes federal prosecutors might be using to build their case.
Legal experts say a case could be made that Trump falsified business records by logging Cohen’s reimbursement for the Daniels payment as legal fees. But that’s only a misdemeanor under New York law — unless prosecutors could prove he falsified records to conceal another crime.
Mark Pomerantz, who led the investigation under then-District Attorney Cyrus Vance Jr., wrote in his recent book “People vs. Donald Trump: An Inside Account” that in 2021, he looked into whether Trump could be charged with money laundering or if Trump had been somehow extorted.
“This is not what the criminal justice system is supposed to be,” Dershowitz said. “I’m not a party person. I’m a liberal Democrat who wants to have the right to vote against Trump for the third time. But I want to see justice, and I want to see it fairly done. No one’s above the law, but no one’s below the law.”
On the political front, Scaramucci, who left the White House after only 10 days on the job as communications director, believes an indictment would set a “very bad precedent.”
“I don’t like President Trump, I certainly didn’t want him to be the next president, but you’ve got to follow the law,” he said. “If we overreach, I think it’s going to have very negative consequences for the U.S., despite our personal feelings about Mr. Trump one way or the other.”
NewsNation writer Andrew Dorn and The Associated Press contributed to this report.