Until Donald Trump, a former president had never been prosecuted, but neither had an elected president.
Trump was indicted in Washington federal court on Thursday on charges related to his efforts to overturn the results of the 2020 presidential election. It was his third indictment this year, after being charged in a New York hush money investigation and a federal investigation into his alleged mishandling of secret documents. In total, Trump faces 78 criminal charges — and a fourth charge is likely to arrive in Georgia.
But the former president is still battling the competition in the 2024 GOP presidential primaries. According to the RealClearPolitics average, Trump’s closest competitor, Florida Governor Ron DeSantis, is more than 30 percentage points behind in the polls. Other Republican candidates have polled no higher than 6 percent.
Trump could also prove to be a formidable rival to President Biden if the two go head to head again in 2024. A hypothetical matchup found the two candidates deadlocked, according to a New York Times/Siena College poll released earlier this week.
As the former president’s legal troubles mount — and as the 2024 race heats up — questions arise about his future presidency in the event of re-election.
“We faced a bigger constitutional crisis when the country had a civil war,” said Alan Rozenshtein, a law professor at the University of Minnesota. “Furthermore, I think this is the worst we’ve had to deal with.”
Here’s what we know about how Trump’s legal troubles could affect a future presidency.
Could Trump’s current affairs disqualify him?
None of the charges Trump faces would prevent him from running for president or taking on that role.
“There is no question that he can be president while he is indicted,” Rozenshtein said. “Indicted only means that there is a criminal process against you; it does not mean that you have been found guilty.”
There are three constitutional requirements to become president: be a natural-born citizen, be a U.S. resident for at least 14 years, and be at least 35 years old. American voters decide the rest. Whether a candidate has been charged or convicted of a crime has no bearing on his or her ability to run for president or rise to the highest office in the country.
Some civil rights groups have posited that Trump violated the 14th Amendment because of his role in the January 6, 2021 attack on the Capitol, and that such a violation would prevent him from holding office.
“No person shall be a senator or representative in Congress, or elector of president and vice president, or hold any office, civil or military, under the United States, or under any state, which, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of a state legislature, or as an executive or judicial officer of a state, in support of the Constitution of the United States, engaged in insurrection or rebellion,” reads a clause in the amendment.
But it’s not clear if the events of January 6 reach the level of “insurgency or rebellion against” the United States, or if the clause prohibits people from running for president, because it’s not explicitly mentioned.
Those questions would have to be answered in court before Trump could be restrained from his term.
What happens if Trump is elected and these cases are pending?
If Trump is re-elected before the cases against him are resolved, efforts to delay them until after his presidency are likely to succeed, said Barbara McQuade, a former U.S. attorney and current professor of law at the University of Michigan.
The Justice Department’s Office of Legal Counsel (OLC) argued in an October 2000 advisory describing a sitting president’s exposure to criminal charges that a criminal case would be too distracting for the country’s leader and therefore not in the interest of the country.
“For the same reason that the sitting president cannot be charged, I think he cannot be required to defend himself in a criminal case while he is president,” she said.
Can Trump face a prison sentence if convicted?
If Trump were convicted and given the highest prison sentence available for any charge he faces, he would face hundreds of years in prison. But that outcome is unlikely because the reality of Trump’s situation is much more complicated.
None of the crimes facing Trump has a mandatory minimum sentence, and judges rarely give the maximum sentence to first-time offenders. Both state and federal judges are given wide discretion in imposing sentences.
In addition, given his status and protection from the Secret Service, the logistics of imprisoning Trump would be “really complicated,” McQuade said.
“If he is convicted, I think it is very likely that he will be sent home,” she said.
But even if Trump were jailed, there is nothing legally to prevent him from becoming president.
In that case, McQuade said she thinks Trump would be released. Rozenshtein said he “can’t imagine any judge” who wouldn’t break Trump’s incarceration until his presidency is over.
Have other presidential candidates been charged?
Trump is the first former president to face criminal charges, but he’s not the only presidential candidate to be charged or convicted of crimes.
Socialist and labor leader Eugene V. Debs ran for president five times — the fifth time, in 1920, he fled prison after being convicted of sedition for protesting World War I, according to a biography in the First Amendment Encyclopedia from Middle Tennessee State University. .” He campaigned as “Convict No. 9653” and earned about 3.4 percent of the popular vote.
Former Texas governor Rick Perry also ran for president while indicted, and conspiracy Lyndon LaRouche and “Tiger King” star Joe Exotic launched presidential bids after convictions.
Can Trump pardon himself if re-elected?
Rozenshtein said the question of whether a president can pardon himself “is a fierce debate among scholars,” but it’s unclear who, if anyone, has a say in challenging such action.
An August 1974 OLC opinion stated that a president cannot pardon himself under the “fundamental rule that no one shall be a judge in his own cause”.
However, the DOJ bureau also argued that if the 25th Amendment were invoked—temporarily designating a vice president as acting president—the acting president could pardon the president-elect. After that, the president-elect could resume the duties of office, the agency argued.
Yet that theory has never been tested in court, McQuade noted. Rozenshtein said such theories are speculative until tested.
“This is a class of questions that has no answer until some authority – the Supreme Court in particular – gives us an answer,” he said.
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