Donald Trump is in a world of legal trouble, and that’s inspired widespread speculation about whether the frequently indicted former president could end up running for a second term from a prison cell.
Federal prosecutors charged Trump on June 9 with 37 felonies—including 31 counts under the Espionage Act for “willful retention” of classified records. He also faces 34 felony counts for falsifying business records, in a New York prosecution initiated by the office of Manhattan District Attorney Alvin Bragg. And, of course, he’s dealing with ongoing litigation related to the civil case brought by columnist E. Jean Carroll, in which he has already been found liable for sexual abuse and defamation.
Given the crowded legal docket that Trump faces, constitutional scholars, political strategists, and fact-checkers have grown increasingly engaged with the question of whether a jailed contender can bid for the nation’s top job. The general consensus was summed up by a Dallas Morning News assessment, which recently explained, “Legally, his multiple indictments, including federal charges related to classified documents that could lead to prison time, wouldn’t stop him.”
CBS News reached a similar conclusion regarding the former president’s battered political prospects.
“The three cases raise an intriguing question about his bid to retake the White House: Can he still become president if he’s convicted in New York or Florida, or now that he’s been found liable in the Carroll case?” asked a CBS analysis. “The short answer, from a legal perspective, is yes, according to experts.”
Fair enough. Given the extent of the 45th president’s legal problems, examining the political issues that they could raise can be seen as an act of journalistic due diligence.
But it’s frustrating for those of us with a sense of historical perspective to look on as media outlets engage in the tortured search for a precedent for a jailbird bid by Trump. That search has, of late, led a number of publications to the century-old circumstance of labor leader and five-time Socialist Party presidential candidate Eugene Victor Debs.
This week, The New York Times employed Debs as part of an otherwise commendable examination of Trump’s political prospects. As has all too frequently been the case, the reference to the Socialist Party’s most illustrious nominee was perfunctory. Aside from a predictable opening line—“Not since Eugene V. Debs campaigned from a prison cell more than a century ago has the United States experienced what might now happen: a prominent candidate with a felony conviction running for president…”—we got only a brief mention of how it was “logistically difficult” for Debs to campaign.
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It is true that Debs ran for the presidency in 1920 from the Atlanta Federal Penitentiary, and it is equally true that the fact of his confinement limited his campaigning options. But that’s where any comparison with Trump ends. If media outlets insist on referencing the socialist contender’s quest from confinement as part of their Trump coverage, they should at least explain that Debs really was the polar opposite of Trump.
Debs was not a billionaire grifter who faced charges of absconding with classified documents, engaging in business fraud, or sexual abuse. He was a proud member of the working class, a visionary advocate for economic, social, and racial justice, and one of America’s greatest champions of freedom of speech. His imprisonment was a travesty. And his 1920 presidential bid represented a righteous challenge to the suppression of dissent by the administration of President Woodrow Wilson and the authoritarian overreach of a legal system that targeted Socialists such as Debs and civil rights champion A. Philip Randolph, along with anarchists such as Emma Goldman, for daring to criticize militarism and war profiteering during World War I.
Debs’s “crime” involved delivering an anti-war address in Canton, Ohio, on June 16, 1918, in which he declared, “They have always taught you that it is your patriotic duty to go to war and slaughter yourselves at their command. You have never had a voice in the war. The working class who make the sacrifices, who shed the blood, have never yet had a voice in declaring war.”
That statement drew enthusiastic agreement from the crowd of Socialist Party stalwarts that had gathered to hear him. But federal prosecutors took a dimmer view. They indicted Debs on 10 counts related to the Espionage Act, charging that he did “unlawfully, willfully and feloniously cause and attempt to cause and incite and attempt to incite, insubordination, disloyalty, mutiny and refusal of duty, in the military and naval forces of the United States.” In case anyone doubted that this was an example of prosecutorial overreach, the feds resolved the matter by acknowledging that they targeted Debs for exercising his rights under the First Amendment. In a front-page New York Times story, federal prosecutor Joseph C. Breitenstein explained that Debs was not indicted for espionage because of anything he’d done. Rather, he was charged “because of things he said in his Canton speech.”
The Debs prosecution involved the fundamental question of whether free speech protections applied during wartime. It was one of the biggest issues of the World War I era, as the great socialist thinker and orator explained. “There is not a single falsehood in that speech. If there is a single statement in it that will not bear the light of truth, I will retract it. I will make all of the reparation in my power,” Debs told the court at his trial. “But if what I said is true, and I believe it is, then whatever fate or fortune may have in store for me I shall preserve inviolate the integrity of my soul and stand by it to the end.”
Debs was convicted and jailed. But the outcry over the prosecution of a political dissenter inspired a deeper assessment of the First Amendment so that, over time, judges concluded that a defender and ally of Debs, Wisconsin Senator Robert M. La Follette, was right when he said:
I think all men recognize that in time of war the citizen must surrender some rights for the common good which he is entitled to enjoy in time of peace. But, sir, the right to control their own government according to constitutional forms is not one of the rights that the citizens of this country are called upon to surrender in time of war. Rather in time of war the citizen must be more alert to the preservation of his right to control his government. He must be most watchful of the encroachment of the military upon the civil power. He must beware of those precedents in support of arbitrary action by administrative officials, which excused on the plea of necessity in wartime, become the fixed rule when the necessity has passed and normal conditions have been restored.
This is a fundamental premise on which Debs sought the presidency in 1920, when he received 914,191 votes—roughly 3 percent of the ballots—as “Prisoner 9653.” History would judge the Socialist Party nominee to be one of the most principled men ever to seek the presidency, just as it would come to recognize that his “crimes” were not crimes at all.
Whether he campaigns from a jail cell or a Republican convention platform, there will be no such assessment of Donald Trump.
