Legal scholars seem to agree that former President Trump’s recent felony conviction in New York on 34 counts of falsifying business records, specifically in relation to a “hush money” payment made to adult film star Stormy Daniels, would not prevent him from being eligible to become president again if the voters choose to re-elect him.
The Constitution sets forth only a handful of requirements for the presidency. A candidate must be a natural-born citizen, at least 35 years old, and have been a resident of the United States for at least 14 years. Surprisingly, the Constitution does not address the issue of how a felony conviction might affect a president’s ability to fulfill their duties.
According to Corey Brettschneider, a lawyer and professor of political science at Brown University and author of “The Presidents and the People,” there is no constitutional prohibition on a convicted criminal running for president. While the Constitution sets forth certain requirements for presidential eligibility, it does not explicitly disqualify individuals based on criminal convictions.
According to Derek Muller, an election law professor at the University of Notre Dame, it is widely believed that the qualifications stated in the Constitution are exclusive, meaning they cannot be expanded upon. Muller also noted that whether or not a person has been convicted of a felony is irrelevant when it comes to qualifying for a position.
According to Jessica Levinson, a constitutional law professor at Loyola University and a CBS News contributor, there is no constitutional prohibition against a convicted felon serving as president.
What about the 14th Amendment?
After the January 6, 2021, attack on the U.S. Capitol, several states have attempted to disqualify Trump based on the insurrection clause of the 14th Amendment.
In December of last year, the Colorado Supreme Court made a decision to remove Trump from the primary ballot. The reason behind this decision was concerns regarding the 14th Amendment. The court found that Trump’s actions surrounding the events of January 6th were in violation of the amendment’s insurrection clause. This clause prohibits individuals who have previously taken an oath to support the Constitution from holding public office.
In March, the U.S. Supreme Court overturned the ruling, stating that Trump must be reinstated on the ballot. The court clarified that only Congress has the authority to enforce the insurrection clause. This decision effectively addressed the concerns raised by voters in various states regarding Trump’s eligibility for office.
According to Brettschneider, if there is no new law that explicitly prohibits a certain action, it cannot be considered as a disqualification.
According to Brettschneider, Congress has the authority granted by the Constitution to pass legislation that would enforce the 3rd section of the 14th Amendment.
What if Trump is sentenced to prison?
If Trump becomes president, the implications of his sentence could be more complex, even though it may not include prison time.
Muller pointed out that it is possible to be convicted of a felony without serving jail time. In such cases, individuals may receive penalties like fines or probation instead.
Running for president and winning an election is not prohibited by law even if one is imprisoned. Similarly, it is also possible to serve as a president while being in prison.
If he is sentenced to prison and wins the election, Trump’s attorneys may argue that sitting presidents cannot be imprisoned, just as Trump has previously argued that sitting presidents cannot be indicted.
According to Muller, the office of the president carries an implicit understanding that states cannot imprison individuals holding federal positions or serving in federal office. This notion is supported by precedents dating back two centuries, where states attempted to remove federal officers from office through legal cases. The Supreme Court has unequivocally established that states lack the authority to take such action.
What about the 25th Amendment?
According to both Muller and Levinson, the 25th Amendment could potentially play a role.
According to Section 3 of the 25th Amendment, if the vice president and a majority of the principal officers of the executive departments or another body designated by Congress determine in writing that the president is unable to fulfill the responsibilities of their office, the vice president will assume the role of acting president without delay.
According to Muller, it is possible to argue that a president who is imprisoned would be unable to fulfill their duties. The ability of a convicted president serving time to have their Cabinet confirmed would likely hinge on the outcome of Senate elections. Brandon Johnson, an assistant professor at the Nebraska College of Law, discussed this topic in an essay published in the Harvard Law Review last year, referring to the concept of a “convict in chief.” If Trump were to have a confirmed Cabinet, it is likely that the members would remain loyal to him and would be unwilling to replace him.
According to Johnson, the 25th Amendment states that Congress has the power to establish another body that can initiate the transfer of presidential powers to the vice president.
According to Johnson, it is highly unlikely that the congressional route will be successful unless there is a major shift in the 2024 election. He explains that Congress would need to come to an agreement to establish a body that would assess the president’s fitness for office.
According to Johnson, it appears that the 25th Amendment would naturally necessitate the vice president’s cooperation.
Johnson wrote that if the vice president’s agreement is necessary, establishing a congressional body to determine the president’s inability to perform their duties may encounter similar challenges.
Could Trump pardon himself from the New York conviction?
If Trump were to become president, he would not be able to pardon himself from the New York conviction. This is because the conviction is at the state level, not federal. The president’s power to pardon only extends to federal crimes.
Trump is currently facing three additional criminal cases. One is a state indictment in Georgia, which relates to alleged attempts to overturn the election. The second is a federal indictment in Florida, which concerns his handling of classified documents. Lastly, there is a federal indictment in Washington, D.C., regarding alleged efforts to overturn the presidential election.
