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A Manhattan grand jury has voted to indict former President Donald Trump. The specific state charges, reports The New York Times, “remain a mystery” but will be related to the Manhattan district attorney’s investigation of Trump for making hush money payments to a porn star just before the 2016 presidential election. It’s the first time a U.S. president or former president has been indicted.

At the same time, Trump is expected to continue his campaign for the presidency, seeking to regain in 2024 the position he lost in 2020 to Joe Biden. What are the consequences of an indictment and potential trial for his campaign and, if his effort is successful, his future presidency?

Article II of the U.S. Constitution sets forth very explicit qualifications for the presidency: The president must be 35 years of age, a U.S. resident for 14 years and a natural-born citizen.

In cases involving analogous qualifications for members of Congress, the Supreme Court has held that such qualifications form a “constitutional ceiling” – prohibiting any additional qualifications to be imposed by any means.

Thus, because the Constitution does not require that the president be free from indictment, conviction or prison, it follows that a person under indictment or in prison may run for the office and may even serve as president.

This is the prevailing legal standard that would apply to former President Trump. The fact of his indictment and potential trial is irrelevant to his qualifications for office under the Constitution.

Nevertheless, there seems no question that indictment, conviction or both – let alone a prison sentence – would significantly compromise a president’s ability to function in office. And the Constitution doesn’t provide an easy answer to the problem posed by such a compromised chief executive.

A presidential candidate could be indicted, prosecuted and convicted by either state or federal authorities. Indictment for a state crime may seem less significant than federal charges brought by the Department of Justice.

Ultimately, though, the spectacle of a criminal trial in state or federal court would have a dramatic effect on a presidential campaign and on the credibility of a president, if elected.

All defendants are presumed innocent until proved guilty. But in the case of conviction, incarceration in state or federal prison involves restrictions on liberty that would significantly compromise the president’s ability to lead.

This point – that functioning as president would be difficult while under indictment or after being convicted – was made plain in a 2000 memo written by the Department of Justice. The memo reflected on a 1973 Office of Legal Counsel memo produced during Watergate titled “Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office.” The background to the 1973 memo was that President Richard Nixon was under investigation for his role in the Watergate break-in and Vice President Spiro Agnew was under grand jury investigation for tax evasion.

According to the 1973 memo, “the President plays an unparalleled role in the execution of the laws, the conduct of foreign relations, and the defense of the Nation.”

Because these core functions require meetings, communications or consultations with the military, foreign leaders and government officials in the U.S. and abroad in ways that cannot be performed while imprisoned, constitutional law scholar Alexander Bickel remarked in 1973 that “obviously the presidency cannot be conducted from jail.”

Yet what to do if citizens actually elect an indicted or incarcerated president? This is not out of the question. At least one incarcerated presidential candidate, Eugene Debs, garnered almost a million votes out of a total 26.2 million cast in the election of 1920. One potential response is the 25th Amendment, which enables the president’s Cabinet to declare the president “unable to discharge the powers and duties of his office.”


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