Yes, He Could Still Be President From Prison
Unless—perhaps—Special Counsel Jack Smith indicts Trump for his role in the January 6 insurrection at the Capitol.
Updated at 9:36 p.m. ET on April 13, 2023
With Donald Trump under indictment in Manhattan while at the same time the current front-runner for the Republican Party’s presidential nomination, an obvious question is top of mind: Can he continue to run, and perhaps even serve a second term, if convicted?
The short answer is that no law exists to stop either possibility—at least not for the crimes he is currently accused of in New York. The same is not exactly true for the crimes he may yet be indicted for relating to his role in the January 6, 2021, insurrection at the Capitol. One criminal statute that Special Counsel Jack Smith may use to charge Trump specifically bars offenders from holding future office. But even if he were convicted of that insurrection-related charge, accountability under the law would likely fall at the feet of Republican lawmakers—and, barring a profound conversion, they are not going to keep him from the nation’s highest office.
The original Constitution contains only three criteria for president: citizenship (natural-born U.S. citizen, meaning a citizen at the time of birth), age (at least 35 years old), and residency (at least 14 years in the U.S., not necessarily consecutively and not necessarily immediately preceding ascension to office). That’s it. Beyond that, after declaring one’s candidacy and designating a political action committee with the Federal Election Commission, running for president requires getting on the primary ballot in as many states as possible, which means complying with a huge range of state-specific ballot-access requirements and deadlines. If Trump were to then secure his party’s nomination via the processes the Republican Party has designed for itself, no federal law would intervene. As The New York Times recently reported, a slew of political candidates have run under similar circumstances, including former Texas Governor Rick Perry, who was under indictment for two felonies when he announced his candidacy for president in 2015. Eugene V. Debs famously ran as the Socialist Party nominee in 1920 from a federal penitentiary in Atlanta. (The winner of that race, President Warren Harding, arranged for Debs’s release the next year.)
Ratified in 1868, Section 3 of the Fourteenth Amendment added to the original text that “no person shall … hold any office, civil or military, under the United States … who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” This post–Civil War provision was designed to prevent former Confederates from interfering with the reconstructed federal government. The Constitution contains no definition of what it means to “have engaged in insurrection or rebellion,” however, and there is no clear enforcement mechanism—no federal law on the books, for example, that authorizes a lawsuit to enable competing candidates to keep constitutionally disqualified individuals from running for federal office. The Civil Rights Act of 1870 allowed federal prosecutors to use a writ of quo warranto—a civil demand that challenged a person’s right to hold public office—but Congress repealed that provision in 1948.
States could instead rush to amend their ballot requirements to exclude insurrectionists or to challenge Trump’s candidacy citing the Fourteenth Amendment—as happened when the House Republican Madison Cawthorn sought reelection in 2022. After a group of voters filed such a challenge with the North Carolina Board of Elections, Cawthorn sued in federal court, citing First Amendment and due-process violations and claiming that the 1872 Amnesty Act, which removed “all political disabilities” that had been imposed by Section 3 on Confederates, covered him as well. A federal appeals court rejected his argument under the Amnesty Act, but expressed “no opinion about whether Representative Cawthorn in fact engaged in ‘insurrection or rebellion’ or is otherwise qualified to serve in Congress.”
In theory, if enough states were to require presidential candidates to affirm that they had not engaged in insurrection or rebellion within the meaning of Section 3 as a precondition to getting on a ballot, other contenders could challenge Trump’s qualifications through whatever mechanisms are provided under each state’s law. But that process would be piecemeal and complicated, with uncertain outcomes, because the scope and meaning of Section 3 have never been definitively litigated.
None of this would keep Trump out of office if he is convicted of any of the state-level crimes for which he has been accused, which have little to do with insurrection or rebellion. But at least one federal crime is different. Smith’s grand jury could indict Donald Trump under 28 U.S.C. § 2383, a federal criminal law that prohibits participation in insurrection. It provides: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto … shall be incapable of holding any office under the United States.”
If Trump were charged and convicted under this law, he could no longer legally hold office—that much is plain. But who would enforce that outcome? Certainly, if he were convicted by next July, when the Republican National Committee will host its convention, the party could refuse to nominate him based on the language of § 2383. That seems unlikely. The alternative would be to ignore the law’s express penalty, an easier political path. Once nominated, if Trump were to legitimately win 270 Electoral College votes in November 2024, Republicans in Congress could simply insist that they all be counted on January 6, 2025. Changes to the Electoral Count Act passed in December of last year raised the threshold for objecting to a state’s slate of electors from a single member from the House and the Senate to 20 percent of the members of each chamber. The law also established that the vice president’s role in the process is purely ministerial. All of this would make it harder to object to Trump’s victory. Additionally, the Fourteenth Amendment says that “Congress may by a vote of two-thirds of each House, remove such disability” if a candidate was disqualified from holding office for having engaged in an insurrection, as happened with the 1872 Amnesty Act. Arguably, that constitutional language could bolster the argument for setting aside the consequences of a conviction under § 2383.
The Republicans will almost certainly not blink at putting a convicted insurrectionist into the highest executive office, should it come to that. Bear in mind that Republicans in the Senate already rejected the clearest opportunity to keep Trump out of the Oval Office definitively for his role on January 6. The House of Representatives charged him in a single article of impeachment with “incitement of insurrection” against the U.S. government and “lawless action at the Capitol.” Article I, Section 3, Clause 7 of the Constitution includes “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” as a penalty for conviction. But 43 Republican senators voted “not guilty,” acquitting Trump on February 13, 2021. At the time, former Senate Majority Leader Mitch McConnell argued in a floor speech that “President Trump is still liable for everything he did while he was in office, as an ordinary citizen … We have a criminal-justice system in this country. We have civil litigation, and former presidents are not immune from being accountable by either one.” McConnell’s answer to the impeachment acquittal was shortsighted, as is now obvious.
If Trump is convicted, his reascension to the nation’s top office would be only the start of the practical and legal difficulties his situation now poses for the country. As it stands, a conviction by a Manhattan jury on any of the 34 felony counts in the indictment secured by the office of District Attorney Alvin Bragg carries a four-year prison term; the sentences for each count would run concurrently. Trial is expected sometime in the spring of 2024, although the former president’s lawyers could likely file enough procedural and evidentiary motions to successfully extend the trial date beyond the election. If Trump were to win the White House and nonetheless be convicted by a jury in Manhattan—or Georgia, for that matter—a self-pardon would not be an option, because the crimes he is charged with are not federal. That would leave the New York State judge Juan Merchan (or whoever winds up with the Georgia case, if that were to proceed) to decide whether to impose prison time on a former—and potentially future—president, which some legal experts believe is unlikely in New York, given that the matter entails nonviolent, white-collar offenses and that Trump has no prior criminal record. Merchan might also do well to consider the Justice Department’s Office of Legal Counsel memos forbidding indictments of sitting presidents in deciding whether to confine Trump to a prison cell. They reason that a criminal sentence “would make it physically impossible for the President to carry out his duties,” while “the public stigma and opprobrium … could compromise the President’s ability to fulfill his constitutionally contemplated leadership role.”
If Trump is convicted and elected, there are no good outcomes for the country. There is only one safe path: that voters in November 2024 make these scenarios irrelevant.
This article originally misstated the number of Republican senators who voted “not guilty” to acquit Trump in February 2021.