Manhattan District Attorney Cyrus Vance, Jr. has convened a grand jury to hear evidence of potential financial malfeasance by former President Donald Trump and the Trump Organization, according to a report by the Washington Post. The news of the grand jury comes after an announcement by the New York attorney general’s office that its civil probe of the Trump Organization has turned into a criminal one.
Given that Trump has already hinted towards a 2024 re-election bid, the possibility of criminal charges opens up the door for Trump to be running a presidential campaign from behind bars—and for the slew of complications that can arise from doing that.
So, how difficult is it for an incarcerated person to run for president? Not very, at least from a legal standpoint.
“When we’re talking about federal office, the limitations would really be political, not legal,” said Kate Shaw, a professor of law at Cardozo Law. “The Constitution actually is really clear about what the qualifications to run for president, or a member of Congress or Senate are.”
Those qualifications—listed in Article Two of the Constitution—include being a natural born citizen, being at least 35 years old, and having lived at least 14 years as a resident of the United States. A potential candidate’s carceral status, however, is not listed in the Constitution as a requirement, nor is a candidate’s criminal record. A Trump who has been convicted by the state or federal government of a crime, then, is equally qualified to run as a Trump with no criminal record—at least from a legal standpoint.
Furthermore, a state that tries to add a requirement to the presidency disqualifying candidates with criminal convictions from running would likely be shut down by the courts. That was the case in 2019, when the California Supreme Court ruled that a California law requiring presidential candidates to disclose their tax returns in order to be eligible to run for president—a direct challenge to President Trump’s refusal to make public his own returns—was unconstitutional.
Trump could have been barred from running for any federal office, including president, if he had been convicted in one of his two impeachment trials. He was acquitted in both on the basis of his support among Republican Senators. A conviction for a state or federal crime offers no such burden.
Indeed, at least three incarcerated people have run for U.S. president before with no legal obstacles. In 1920, Socialist Party leader Eugene V. Debs ran while incarcerated for charges related to his protesting against World War I. Another candidate, Lyndon LaRouche, ran in 1992 while incarcerated for tax evasion and mail fraud. And yet another, Keith Judd, managed to be included on the ballot—and win 41 percent of the vote against incumbent president Barack Obama—in West Virginia’s Democratic primary while incarcerated as recently as 2012. While all three candidates ran multiple times, none ever won any electoral votes.
The difficulty for a Trump re-election bid, if he were to be convicted of a crime, comes instead from public perception and the politics of running for president with a criminal record, plus the logistical obstacles of campaigning or taking the oath of office from prison. Conviction seems unlikely to cost him support among the GOP primary electorate, with a recent poll showing that 66 percent of Republicans want him to run again in 2024 despite his well-publicized legal woes.
“His supporters will argue that both impeachment and indictment are very politicized actions,” said Mildred Elizabeth Sanders, a professor of government at Cornell University.
If anything, Trump’s potential incarceration could be used to further ignite his self-proclaimed status as a victim of what he calls “the greatest Witch Hunt in American history.” If that were the case, he wouldn’t be the first presidential candidate to use his incarceration for political gain. Debs did something similar when running from prison in 1920.
“When Debs ran as a Socialist Party candidate…, he featured his conviction and incarceration as part of his political strategy,” said Lisa Marshall Manheim, a professor at the University of Washington School of Law. “For example, his campaign handed out buttons referring to Debs as Convict No. 9653.”
Trump has already primed the ground for such a campaign, if it becomes necessary, taking to his personal blog (he’s still banned from Twitter and Facebook) to call the grand jury seating both “purely political” and “highly partisan.”
If Trump were to somehow win reelection after being convicted of any crime, it would be unrealistic to expect that he can govern from behind bars, according to Shaw. According to the Constitution, a president must be able to perform the executive duties vested on them by the government—duties which would be extremely difficult to perform under the constraints that come with being incarcerated.
In that instance, Shaw outlines three options: Trump could be impeached again, the Cabinet could initiate 25th amendment proceedings to remove Trump from office, or Trump could present the case to the courts that his sentence must be suspended until after his term in office.*
In other words, Shaw said, “The powers of the presidency would have to give, or the state’s criminal authority would have to give.”
In the meantime, the decision on whether Trump will pursue re-election from behind bars is up, in part, to the grand jury, which will reportedly be meeting weekly for the next six months to hear evidence from the Trump investigation before deciding on whether or not to indict the former president. If they choose to indict, Trump would become the first U.S. president to be charged with a crime.
Correction, May 27, 2021: This piece originally misstated that Congress initiates 25th amendment proceedings. The Cabinet actually does.