Earlier this month, in a federal court in DC, a lawyer for Donald Trump argued that a former president who had not been impeached and convicted by Congress should be immune from prosecution for any official acts he did in office. Legal scholars across the political spectrum were shocked to hear Trump’s team argue that even if a president ordered SEAL Team Six to kill political enemies, he would still be immune from prosecution absent an impeachment in the House and a conviction in the Senate.
Trump himself, however, has spent years saying his political enemies, from John Bolton to James Comey and Adam Schiff, should be put in jail for what he perceived as crimes committed against him. And on more than a few occasions, former presidents were the target of his criminal accusations.
Additionally, Trump is simultaneously appealing decisions in Colorado and Maine, fighting back against rulings that say he is not eligible to appear on the ballot under Section Three of the 14th Amendment for his role in the January 6th insurrection because he hasn’t been convicted of anything, but he hasn’t been consistent on that point either. Weeks before the 2020 election, in a frenzy of statements calling for both former President Barack Obama and then-former Vice President Biden to be indicted, Trump also claimed that Biden should not be able to seek the office because of his role in a perceived conspiracy against Trump.
“TREASON means long jail sentences, and this was TREASON!”
In late 2018, Trump retweeted an image, later deleted, that showed former presidents Bill Clinton and Barack Obama behind bars, with the caption that suggested they should be tried for treason.
Trump was referring to the unfounded claims that his 2016 campaign was spied on by the Obama administration as part of a larger “deep state” initiative to undermine his presidential bid. It bears emphasizing that there is no evidence for what Trump was claiming, and even if it were true, it would not rise to the level of treason, which is a capital crime.
Former President Obama was the most frequent target of Trump’s accusations. In August 2018, for example, Trump was suggesting that the FBI’s investigation into Russia’s attempts to interfere on behalf of his campaign were criminal, and that if they “happened to the other side, everybody involved would be in jail.” By the following March, Trump was pointing the finger at Obama specifically. In an interview with Fox News’s Sean Hannity, Trump called what happened treason, “We can never allow…these treasonous acts to happen to another president. This was an attempted takeover of our government, of our country, an illegal takeover. If it were the other way around, where I was doing it to President Obama or a Democrat, it would be virtually the maximum sentence that you can find no matter where you look in whatever legal book.”
By May 2019, Trump was specifically calling for prison sentences, “My Campaign for President was conclusively spied on. Nothing like this has ever happened in American Politics. A really bad situation. TREASON means long jail sentences, and this was TREASON!” In 2020, the charge of treason is one that he would specifically ascribe to Obama and Biden, tweeting in July, “So we catch Obama & Biden, not to even mention the rest of their crew, SPYING on my campaign, AND NOTHING HAPPENS? I hope not! If it were the other way around, 50 years for treason. NEVER FORGET!!!!” He had used the “50 years” comment weeks earlier in a Fox News town hall, saying, “They were spying. I said that a long time ago, remember? But I said it without great knowledge. It turned out to be correct. They were spying on my campaign. And if that were the other way around, if it was switched with Democrat and Republican, the opposite way, you’d have people in jail for 50 years for what they did, because that’s treason.”
In fact, from February to September of 2020, Trump referenced the 50 year jail sentences for what he perceived as President Obama and others’ crimes against him at least 8 times in a tweet and other statements. On the last such occasion, during a Labor Day event at the White House, Trump was explicitly asked if he wanted Obama, Biden and others to be indicted and prosecuted. In his rambling answer, Trump made no reference to presidential immunity, choosing rather to make multiple criminal accusations and again suggest that “if it were me, they wouldn’t be leaving me alone, I can tell you. It’s a totally double standard, and it’s a — it’s a disgrace.”
“BIDEN SHOULDN’T BE ALLOWED TO RUN – GOT CAUGHT!!!”
In the lead-up to the 2020 election, Trump said that Biden should not be allowed to run for president, citing the same “treasonous plot.” But he has changed his tune on that issue, too, as Colorado and Maine have found he is ineligible to seek the presidency under Section 3 of the Fourteenth Amendment for his role in the January 6th insurrection. His principle critique of the cases has been that removing a leading candidate from the ballot—even before any votes had been cast—is anti-democratic election interference. Yet, in Trump’s fervor for accountability for perceived crimes, he repeatedly suggested, in the final month of the 2020 campaign, that Joe Biden wasn’t eligible to run for president. On October 7, 2020, he tweeted, “Wow!!! NOW DO SOMETHING ABOUT THIS, THE BIGGEST OF ALL POLITICAL SCANDALS (IN HISTORY)!!! BIDEN, OBAMA AND CROOKED HILLARY LED THIS TREASONOUS PLOT!!! BIDEN SHOULDN’T BE ALLOWED TO RUN – GOT CAUGHT!!!”
Later that same day, Trump tweeted, “Obama, Biden, Crooked Hillary and many others got caught in a Treasonous Act of Spying and Government Overthrow, a Criminal Act. How is Biden now allowed to run for President?” The following day, Trump went on Fox Business and made his clearest statement to date, explicitly calling for both Obama and Biden to be indicted: “Unless Bill Barr indicts these people for crimes, the greatest political crime in the history of our country, then we’re going to get little satisfaction unless I win and we’ll just have to go, because I won’t forget it. But these people should be indicted, this was the greatest political crime in the history of our country and that includes Obama and it includes Biden.” Less than a week later, just twenty days before the election, Trump said at a rally in Des Moines, Iowa, “Now we can see clearly that Biden is a corrupt politician, who shouldn’t even be allowed to run for the Presidency.”
Nearly four years later—less than a year out from the presidential election—his tone has changed as he faces constitutional challenges to stay on the ballot, which have already been upheld in the only two states to hear the case against him on the merits. In appealing the Colorado Supreme Court’s ruling barring Trump from appearing on the ballot, his campaign released a statement calling the effort “an unAmerican, unconstitutional act of election interference that cannot stand.”