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Law expert: Trump could still be elected president in 2024 if indicted

Yahoo News 3/21/2023 Kate Murphy
Former President Donald Trump at an event in Davenport, Iowa, on March 13. (Scott Olson/Getty Images) © Provided by Yahoo News Former President Donald Trump at an event in Davenport, Iowa, on March 13. (Scott Olson/Getty Images) © Provided by Yahoo News US

A Manhattan grand jury is expected to decide soon whether to indict former President Donald Trump over alleged hush money payments on his behalf during his 2016 presidential campaign.

The unprecedented case presents a major twist as Trump mounts his third campaign for the White House. If Trump — who denies any wrongdoing — is indicted, he would be the first former U.S. president to face criminal charges.

But don’t expect the case to present any legal barriers to his bid. (Voters can and will make up their own minds, of course.)

Under Article 2 of the U.S. Constitution, there are only three qualifications that need to be met for the office of the presidency: The person must be at least 35 years old, must be a natural-born citizen and must have lived in the U.S. for at least 14 years.

Yahoo News spoke with Ned Foley, a law professor and director of the election law program at Ohio State University, to map out how Trump’s legal troubles could influence his ability to win and hold office. (Some responses have been edited for length and clarity.)

We’ve covered the qualifications for the U.S. presidency. Is there anything that could disqualify a person from seeking the Oval Office?

There is one act of Congress that’s on the books [Section 3 of the 14th Amendment]. It is an insurrection statute that says if you are charged with that crime and found guilty of that crime, in addition to a maximum 20-year prison sentence, it does disqualify you from holding federal office. But that’s the crime that would have to be charged for a criminal prosecution to be a disqualification. So there’s really only one crime which is linked to that prohibition.

If former President Trump is indicted and eventually convicted on criminal charges, could he continue his 2024 presidential campaign?

For every single criminal law but the insurrection one I mentioned, Trump could definitely still run.

Eugene Debs, who was the candidate for president in 1920 on the Socialist Party ticket, was in jail, having been prosecuted for his antiwar activities during the First World War. So there is some historical precedent for significant presidential candidates running after having been convicted of a crime.

Could other investigations prevent Trump from seeking office?

The Georgia case [an investigation into alleged attempts to overturn the 2020 presidential election results in the state] would not bar him from running or holding office. The Mar-a-Lago documents case [in which the Justice Department is investigating the discovery of sensitive government documents at Trump’s estate after he left office] would not bar him from running or holding office. Even some of the criminal statutes that have been talked about in connection with his role in the Jan. 6 attack on the Capitol, most of them that have been mentioned publicly, don’t carry the specific disqualification clause that the insurrection crime does.

Hypothetically speaking, if Trump were elected in 2024 but serving jail time, could he still become president?

This would be a structural argument based on the supremacy of the Constitution. In other words, if he’s been lawfully elected president, and let’s say Congress on Jan. 6, 2025, says he was duly elected president. It’s all hypothetical and we’re speculating, but if he’s sitting in jail, I do think there’s a difference between a New York State jail or a Georgia jail and a federal jail.

There’s basically a very clear concept that state law has to give way to the supremacy of federal law. There’s a conflict. It’s pretty easy to see that if he’s been elected president under federal law, it’s required that he sit in the White House in order to serve as the chief executive of the federal government. Then you could say that that preempts any conflicted state law, and he just has to be released from any incapacity under state law that would prevent him from doing his duties under federal law. So that preemption is pretty much easier to see.

If he has been convicted of a federal crime and is sitting in a federal prison, then the preemption analysis is between two different parts of federal law. One is the Constitution, which is the supreme law of the land, and the other is the federal statute.

There are Supreme Court cases having to do with presidential immunity from tort liability. We’ve had the D.C. Circuit decide an application of that precedent to these tort lawsuits against Trump for his role on Jan. 6. Normally, all of us are liable in tort for the injuries we cause people by our conduct.

Some people are suing Trump for damages in connection with his alleged incitement of Jan. 6. The D.C. Circuit has now allowed that lawsuit to go forward on the theory that Trump’s speech on Jan. 6 was not within even the outer perimeters of his role as president of the United States. I mention that because the immunity doctrine is a doctrine that the Supreme Court has developed as embedded within the status of being president: In order to make the presidency function properly within our system of separation of powers, you have to assume that this kind of immunity concept exists.

And that line of reasoning would apply, I think, in this context. In order to effectively serve as president, you can’t be in jail. The supremacy of the Constitution, and the fact that he was elected pursuant to the Constitution, would require him to be released from jail.

A secondary issue of criminal law, which I’m not an expert in, is whether or not this would kind of suspend his sentence for a period of time. And if he’d have to serve the rest of the sentence after finishing his presidential term.

If Trump is elected in 2024, could he just pardon himself in any of the investigations?

Definitely not in the cases of New York and Georgia. The president only has the power to pardon federal crimes. The Mar-a-Lago case is more complicated. There’s a huge debate on that, and it’s not in my direct area of expertise.

The pardon power is extremely broad under the Constitution. But there is this debate about whether there’s kind of an implied exception to the breadth of the pardon power for the concept of the self-pardon. The argument has been made that, notwithstanding the breadth of the pardon power, it’s just inconsistent with the concept of the pardon power. I’ve seen that argued both ways. The counterargument is that the pardon power exists, and if a president were to attempt to self-pardon, then the issue would be whether it’s an abuse of power that would warrant impeachment.

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