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Under the provisions of the Former Presidents Act (FPA), what legal precedents or existing laws determine Secret Service protection for former U.S. presidents during incarceration periods?

How do the provisions of the Former Presidents Act (FPA) relate to the provision of Secret Service protection during a prison sentence for a former president?

The 'Bernie Sanders' Party
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    I am not sure if this can be answered as until now has it ever been considered a possibility that a former president under protection would be put in jail/prison? If anything the question would he be put in some sort of house arrest instead of prison., – Joe W Sep 29 '23 at 19:30
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    It's an open question that is probably a matter of speculation and opinion at this point, but I'll see what people have to say in answers rather than closing it immediately. – ohwilleke Sep 29 '23 at 19:35
  • Related: https://politics.stackexchange.com/questions/26202/what-would-happen-if-a-us-president-was-put-in-prison – Barmar Sep 29 '23 at 19:41
  • Thank you for your comments. The question is primarily focused on understanding the legal provisions and precedents regarding Secret Service protection for former presidents during periods of incarceration, if such situations were to arise. It seeks objective information and legal analysis within the context of the Former Presidents Act. While it may involve hypothetical scenarios, it's framed to explore the legal aspects rather than speculative opinions. I appreciate your consideration. – The 'Bernie Sanders' Party Sep 29 '23 at 20:12
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    The simple answer is that this is totally unprecedented and most likely unanticipated. Until it happens, no one can really be sure. If the SS does have contingency plans for this, they're almost certainly secret. – Barmar Sep 29 '23 at 20:17
  • It's true that this situation is unprecedented, and there may be limited publicly available information. However, the question seeks to explore any existing legal provisions or historical precedents that may apply, even if it's an uncommon scenario. Any insights or references to relevant laws, if they exist, would be valuable. While it's acknowledged that some aspects might be speculative, the goal is to gather objective information and legal analysis within the context of the Former Presidents Act. – The 'Bernie Sanders' Party Sep 29 '23 at 20:20
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    The problem with that is not only is this something that has never happened it is something that has likely never even been considered as having a possibility of happening. Outside of Trump can you name one president who has been charged with crimes that have the possibility of landing them in prison since the secret service was founded? – Joe W Sep 30 '23 at 00:08
  • By uncommon and hasn't frequently occurred I think you mean has never occurred in the history of presidents being protected by the secret service after they leave office. Repeated claims that this has happened in the past without any evidence isn't helping your question.\ – Joe W Sep 30 '23 at 15:36
  • Thank you for your comment. I apologize if there was any confusion regarding the historical occurrence of former presidents under Secret Service protection being incarcerated. The intent of my question is to explore the legal aspects and considerations surrounding Secret Service protection during incarceration, even if such scenarios have not previously occurred. I appreciate your feedback and would like to refocus the discussion on the legal framework and potential precedents within the context of the Former Presidents Act. – The 'Bernie Sanders' Party Sep 30 '23 at 15:51

2 Answers2

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As I understand it, if someone protected by the Secret Service were to be sentenced to jail or prison time, the Secret Service would pass protective duties on to the agency or institution handling the incarceration. It's equivalent, in effect, to the way that convicted prisoners are already formally transferred between police, court bailiffs, sheriffs, and prison staff as they move through the legal system. There's paperwork involved, but not much else.

In other words, the Secret Service would handle protective details up until the person in question was convicted (or incarcerated pending trial), and then would hand that person over to the incarcerating authorities with certain guarantees: most likely periodic inspections and reports, and limitations on the convict's exposure to other prisoners. The person in question would not receive Secret Service protection while in custody, because that duty would fall on the custodial authority. There's nothing special about Secret Service protection — it's a police agency like any other — so once the convict passes into the locus of control of a different agency, the Secret Service will cede most of its responsibilities to that other agency.

I know this is an unprecedented case, but bureaucracy has its own irrefutable logic that is unlikely to be denied.

Ted Wrigley
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  • I appreciate your response. It provides practical insights and bureaucratic logic indeed. – The 'Bernie Sanders' Party Sep 30 '23 at 12:00
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    It's conceivable, though, that the secret service would seek to have its own agents posted outside the former president's cell or otherwise to be actively involved in the person's security arrangements. It seems like it could go either way, but I suspect they would resist handing the person over to the prison altogether. This seems especially likely if it is a state prison rather than federal. – phoog Sep 30 '23 at 13:33
  • This makes sense as I do remember talk of the secret service handing off control to the state of Georgia when he turned himself in for charges in that state. – Joe W Sep 30 '23 at 15:34
  • @phoog: Perhaps, but the SS (unfortunate acronym) would not want to (effectively) incarcerate its agents along with the convicted person. If they wanted an on-site presence they'd most likely create a liaison office: agents with their own office in the administrative wing of the building who monitored the president remotely through prison surveillance cameras. – Ted Wrigley Sep 30 '23 at 16:50
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    "would not want to (effectively) incarcerate its agents along with the convicted person" guarding a president in a prison does not amount to effective incarceration. At the end of your shift, you're free to go home, to the bar, to the movies, whatever. A significant concern would be the prospect of violence from other inmates; remote monitoring is a notoriously ineffective way of preventing that. – phoog Sep 30 '23 at 16:57
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    @phoog: First, the SS is meant to guard VIPs from public threats: assassination, terrorism, kidnappings. Prisons are under the control of the warden; such public threats are unlikely. Second, prison administrations are far better equipped than the SS to guard a prisoner from other prisoners, and would heavily resist amateurs coming in to disrupt their workflow. Third, Trump in specific would have a self-appointed bodyguard from day 1, likely made up of Aryan Brotherhood members and other white supremacists who see him as their leader. There's really nothing to fear here. – Ted Wrigley Sep 30 '23 at 17:48
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    "meant to guard VIPs from public threats: assassination, terrorism, kidnappings": where is this mission statement? How is getting shanked by another inmate not covered? I'm skeptical. "prison administrations are far better equipped than the SS to guard a prisoner from other prisoners": if they're so good at it, why are so many inmates and guards assaulted and murdered? – phoog Sep 30 '23 at 18:01
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    @phoog: With respect to point 1: that is what the SS DOES. do you think they are worried about POTUS getting mugged or carjacked? Common sense, please. With respect to point 2: Prison guards may not be able to stop all criminal activity in a jail (and they may not bother to stop some criminal-on-criminal crime, out of sheer jaded nihilism), but they'll be worlds better at it than some SS agent who's never seen the inside of a prison. SS agents aren't magically better at everything than everyone else; they are professionals with their own areas of expertise, just like prison guards. – Ted Wrigley Sep 30 '23 at 18:20
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    Is there any evidence that the Secret Service has in the past delegated responsibility, or that such delegation is mandated by legislation? This seems entirely possible, but needs specific examples. This answer is currently nothing but speculation without any evidence or citations. – Stuart F Oct 02 '23 at 10:11
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    @StuartF: I'm honestly shocked at how may people have mythologized the Secret Service (as though it were all-powerful, like the Nazi SS). The USSS is not a political authority. It is a civil agency that must secure the cooperation of other civil agencies when its charges enter other jurisdictions. That is the law; please look up the term 'jurisdiction'. If an ex-president is sent to prison, the SS is obliged to surrender the EP to the incarcerating agency (IA), and it must ask the IA for cooperation, or secure a court order granting the SS influence in the IA's jurisdiction. – Ted Wrigley Oct 02 '23 at 13:51
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Since you asked on Politics Stack Exchange rather than Law Stack Exchange, the answer would have to look at political angles.

The US did imprison the former CSA President, Jefferson Davis. He was considered very much not the average prisoner, with case-by-case decisions and public opinion playing a role. The reunified Germany started to try the former Secretary General of the East-German communist party, Erich Honecker, until charges were dropped on grounds of the deteriorating health of the defendant and his inability to stand trial (not uncommon in Germany for defendants of this age).

Among democracies, the precedent seems to be that former heads of state are not ordinary prisoners, even if the laws apply to them just like any other prisoner. Visibly treating them like other prisoners is an attempt to send a message to the nation, but in practice the authorities are aware that the incarceration will be watched closely, and various special accommodations are made.

Regarding the comments: I mentioned Jefferson Davis not as an example for Secret Service protection, but as an example how ordinary rules get applied or not applied to a "very important prisoner," even in a country which follows the principles of the rule of law.

o.m.
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    Worth noting that the US Secret Service wasn't doing presidential protection when Jefferson Davis was imprisoned? They did not get that duty until 1901. – John Dallman Sep 30 '23 at 08:51
  • I appreciate your response. I did submit a similar question on the Law SE a few months ago, but it unfortunately went unanswered and remains open there, conforming to the Law SE guidelines. I did mention in my comment on that platform that I had contemplated whether to post it on Law SE or Politics SE, ultimately opting for Law initially. Given that it has remained unanswered for more than two months, I rephrased it slightly and posted it on Politics SE. – The 'Bernie Sanders' Party Sep 30 '23 at 11:47
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    @JohnDallman indeed, the secret service began its existence 45 days into Davis's imprisonment. – phoog Sep 30 '23 at 11:59
  • I appreciate your response. It provides relevant examples and gives a political perspective while acknowledging the uncommon nature of this. – The 'Bernie Sanders' Party Sep 30 '23 at 12:02
  • I don't think that Jefferson Davis had secret service protection as not only was he not president of the US but the secret service was founded after the civil war ended. – Joe W Sep 30 '23 at 15:31
  • @JohnDallman, the point of my answer is the difficult balancing act between being seen to apply the law impartially, and being in a quite unusual situation. I seriously doubt that Trump would ever mix with the general prison population, unless he were to demand that. – o.m. Sep 30 '23 at 16:05
  • Not sure being the leader of group that commits treason against the country counts as being a very important person in regards to throwing them in jail. – Joe W Oct 08 '23 at 02:09
  • @JoeW, if an ex-president were to go to jail, that person would get special attention. For this ex-president, even more so. – o.m. Oct 08 '23 at 05:50
  • In the example you used Jefferson Davis would not be recognized as an ex-president because the office he held wasn't recognized and was part of a traitorous organization that was recognized as such during that time. – Joe W Oct 08 '23 at 14:29
  • @JoeW, even so he seems to have received special treatment. – o.m. Oct 08 '23 at 14:52
  • That doesn't mean it is comparable to what would happen if a president got convicted of a crime and had to serve jail time. – Joe W Oct 08 '23 at 16:40
  • @JoeW, we'll have to wait and see, but emotions did run high 160 years ago just as they do today. Some people would certainly make a media circus out of every description of a prison breakfast ... – o.m. Oct 08 '23 at 16:49