Could Trump still become president if he’s charged with or convicted of a crime?
Washington — The prospect of former President Donald Trump potentially being charged and even convicted in New York has raised an intriguing question about his bid to retake the White House: could he still become president if he’s indicted and found guilty of a crime?
The short answer, from a legal perspective, is yes, according to experts.
While charges against a former president and leading contender for a major party’s presidential nomination would certainly be unprecedented, there is nothing in the Constitution that prevents someone who has been charged or convicted from seeking or taking office.
“It’s pretty widely accepted that the list of qualifications in the Constitution is exclusive — that is, Congress or states can’t add qualifications to those listed in the Constitution,” said Derek Muller, a law professor at the University of Iowa. “It’s something that really doesn’t affect your ability to run as a candidate, to appear on the ballot, or to even win the election.”
Trump and his allies are awaiting word on a possible indictment by a New York grand jury that has been convened by Manhattan District Attorney Alvin Bragg, who is investigating matters related to a $130,000 payment made to the porn star Stormy Daniels shortly before the 2016 presidential election. Michael Cohen, Trump’s then-attorney and “fixer,” made the payment in exchange for Daniels agreeing not to disclose an alleged affair she said she had with Trump a decade earlier, which he denies.
Trump reimbursed Cohen for the payment, and prosecutors are believed to be examining the potential falsification of business records over the reimbursements. Trump has denied all wrongdoing. Attorney Robert Costello, a Trump ally who says he advised Cohen on legal matters, said he told the grand jury earlier this week that Cohen acted on his own accord in arranging the deal with Daniels and was a “totally unreliable” witness.
While Trump said over the weekend that he expected to be arrested in the case on Tuesday, the day came and went with no word of charges, and the grand jury is not meeting on Wednesday as planned, sources said. Trump remains at his Mar-a-Lago estate in Florida, where he has huddled with advisers in anticipation of an indictment.
A decision to charge Trump would send shockwaves throughout the political world and introduce an unpredictable new dimension to the 2024 race for the GOP nomination. Legally speaking, however, the Constitution lays out just three requirements to become president: the person must be a natural born citizen of the United States, 35 years or older and a resident of the U.S. for at least 14 years.
Indeed, candidates with criminal convictions have run for president in the past. There is even precedent for running for president from prison.
Dan Ortiz, a professor at the University of Virginia Law School, pointed to Eugene Debs, who ran for president while behind bars in a federal prison in Atlanta as the nominee of the Socialist Party in 1920. Debs had been convicted of violating the Espionage Act over an anti-war speech. He won more than 3% of the vote nationally.
“I know of nothing that would have barred him from the office if he had won the election,” Ortiz said.
Lyndon LaRouche, a fringe candidate who espoused conspiracy theories about an economic apocalypse, ran for president in every election between 1976 and 2004. He was convicted of tax and mail fraud in 1988, but that didn’t stop him from running his campaign from prison in 1992.
Although there may be practical hurdles involved in running a campaign under the shadow of criminal charges, including any restrictions on travel imposed by a judge, there are no constitutional obstacles to participating in the election, according to Muller.
“If you’re convicted of a felony and incarcerated, you can’t vote, but you can win the election,” Muller said. “The point is, there were meant to be very few qualifications, and it was meant to be left to the voters or the state.”
In the wake of the Jan. 6 attack on the Capitol, some House Democrats introduced a bill seeking to bar Trump from holding office again by invoking the 14th Amendment, which bars anyone who has “engaged in insurrection or rebellion” or “given aid or comfort” to enemies of the U.S. after having taken an oath to support the Constitution. That bill never made it out of the House before Republicans took control in January.
Some Trump allies have argued that being charged would actually bolster Trump’s candidacy for the GOP nomination by rallying the Republican base to his defense. So far, top GOP lawmakers and his rivals for the nomination have been reluctant to criticize Trump directly and have largely framed a potential indictment as an abuse of power by Manhattan prosecutors.
The former president also faces several other criminal investigations on the state and federal level that could complicate his ability to campaign for the nomination. But none of those cases would technically prevent him from running for or winning the White House, even if he is ultimately convicted.
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